+
+================================================================================
+Appendix J to Exhibit A
+
+ IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
+
+(CHINESE CHARACTERS) (CHINESE CHARACTERS)
+MICROSOFT (CHINA) CO., LTD. ATA TESTING AUTHORITY, BEIJING CO., LTD.
+
+
+By: By:
+ --------------------------------- ------------------------------------
+Name: Name:
+ ------------------------------- ----------------------------------
+Title: Title:
+ ------------------------------ ---------------------------------
+Date: Date:
+ ------------------------------- ----------------------------------
+
+
diff --git a/raw/1424657_0001213900-16-016691_f8k082516ex99iii_nextgroup.htm b/raw/1424657_0001213900-16-016691_f8k082516ex99iii_nextgroup.htm
new file mode 100644
index 0000000000000000000000000000000000000000..f0ff590eb4e4d57b1fe67c90792f13c71cb3e097
--- /dev/null
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@@ -0,0 +1,242 @@
+
+
+
+
+
+
+Exhibit
+99.3
+
+
+
+
+
+
+
+MUTUAL
+NON-DISCLOSURE AGREEMENT
+
+
+
+This
+Agreement is made and entered into as of the last date signed below (the "Effective Date") by and between InsightPOS
+LLC , a New Mexico limited liability corporation with it's register d office at 8228 L uisiana Blvd, NE, Suite A, Albuquerque
+NM 87113 ("Insight") and NEXT GROUP HOLDING, a FLORIDA corporation whose principal mailing address is
+
+
+1111 Brickell Avenue Miami, FL. 33131. (the "Second
+Party").
+
+
+
+WHEREAS
+Insight and the Second Party (the "Parties") have an interest in participating in discussions wherein either Party might
+share information with the other that the disclosing Party considers to be proprietary and confidential to itself ("Confidential
+Information"); and
+
+
+
+WHEREAS
+the Parties agree that Confidential Information of a Party might include, but not be limited to that Party's: (1) business plans,
+all contracts, methods, and practices; (2) personnel, customers, and suppliers; (3) inventions, processes, methods, products,
+patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, models, samples, tools, computer
+programs, technical information, or other related information;
+
+
+
+NOW,
+THEREFORE, the Parties agree as follows:
+
+
+
+1. Either
+Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such
+information as proprietary and confidential either by marking it, in the case of written materials, or, in the case of information
+that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential
+nature of the information, such notification to be done orally, by email or written correspondence, or via other means of communication
+as might be appropriate.
+
+
+
+2. When
+informed of the proprietary and confidential nature of Confidential Information that has been disclosed by the other Party, the
+receiving Party ("Recipient") shall, for a period of three (3) years from the date of disclosure, refrain from disclosing
+such Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party
+and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence
+that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care.
+The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information
+disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of
+this Agreement. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing
+Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process
+requiring production or disclosure of said Confidential Information.
+
+
+
+3. All
+Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained
+in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party.
+The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information
+disclosed under this Agreement and all notes related to such Confidential Information. The Parties agree that the disclosing Party
+will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed
+in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach
+or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of
+competent jurisdiction.
+
+
+
+4. The
+terms of this Agreement shall not be construed to limit either Party's right to develop independently or acquire products without
+use of the other Party's Confidential Information. The disclosing party acknowledges that the Recipient may currently or in the
+future be developing information internally, or receiving information from other parties, that is similar to the Confidential
+Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts,
+systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied
+in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection
+with such development.
+
+
+
+CONFIDENTIAL
+
+
+
+
+
+
+
+
+
+
+
+Non-Disclosure
+Agreement
+
+
+
+5. Notwithstanding
+the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation
+to hold in confidence such information, where such information:
+
+
+
+
+ | (a) | Is
+ already known to the Recipient, having been disclosed to the Recipient by a third party
+ without such third party having an obligation of confidentiality to the disclosing Party;
+ or |
+
+ | (b) | Is
+ or becomes publicly known through no wrongful act of the Recipient, its employees, officers,
+ directors, or agents; or |
+
+ | (c) | Is
+ independently developed by the Recipient without reference to any Confidential Information
+ disclosed hereunder; or |
+
+ | (d) | Is
+ approved for release (and only to the extent so approved) by the disclosing Party; or |
+
+ | (e) | Is
+ disclosed pursuant to the lawful requirement of a court or governmental agency or where
+ required by operation of law. |
+
+
+
+6. Nothing
+in this Agreement shall be construed to constitute an agency, partnership, joint venture, or other similar relationship between
+the Parties.
+
+
+
+7. Neither
+Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or
+the terms of this Agreement.
+
+
+
+8. This
+Agreement contains the entire agreement between the Parties and in no way creates an obligation for either Party to disclose information
+to the other Party or to enter into any other agreement.
+
+
+
+9. This
+Agreement shall remain in effect for a period of two (2) years from the Effective Date unless otherwise terminated by either Party
+giving notice to the other of its desire to terminate this Agreement. The requirement to protect Confidential Information disclosed
+under this Agreement shall survive termination of this Agreement.
+
+
+
+IN
+WITNESS WHEREOF:
+
+
+
+
+
+ | INSIGHTPOS LLC |
+ |
+ COMPANY
+ / INDIVIDUAL |
+ |
+
+ | |
+ |
+ |
+ |
+ |
+
+ | /s/
+ Dennis Varghese |
+ |
+ /s/ Michael
+ Deprad |
+ |
+
+ | Signature |
+ Date |
+ |
+ Signature |
+ Date |
+
+ | Dennis
+ Varghese |
+ |
+ Michael
+ Deprad |
+ |
+
+ | Printed
+ Name |
+ |
+ Printed
+ Name |
+
+ | CEO |
+ |
+ |
+ President
+ and COO |
+ |
+
+ | Title |
+ |
+ Title |
+
+
+
+
+
+-Page
+2 of 2-
+
+CONFIDENTIAL
+
+
+
+
+
+
+
+
+
+
\ No newline at end of file
diff --git a/raw/1430300_0000950152-08-005260_l32384aexv10w7.htm b/raw/1430300_0000950152-08-005260_l32384aexv10w7.htm
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index 0000000000000000000000000000000000000000..632435c86127bfc8c624bbdef43a75e6d6c62599
--- /dev/null
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@@ -0,0 +1,99 @@
+
+
+EX-10.7
+
+
+
+
+
+
+
Exhibit 10.7
+
+
+
+
NON-DISCLOSURE AGREEMENT
+
+
+
The undersigned, (hereinafter called “investor”) in consideration for the use of certain
+information, data and/or know-how related to the so-called “Entec Engine” the rights to which are
+owned TecTransfer, Inc. a Nevada Corporation, hereby agrees as follows:
+
+
+
1. Investor shall keep in confidence and not use the Information for its commercial benefit (except
+for technical and economic evaluation internal to investor). investor shall further keep in
+confidence and not disclose any part of the Information to a third party or parties or use the
+business plan without the written consent of TTI.
+
+
+
2. Any obligation of investor as set forth in the preceding paragraph shall apply to information
+disclosed in writing and designated confidential, or if disclosed orally, shall be promptly reduced
+to writing. However, this obligation shall not apply to any information, knowledge, data and/or
+know-how which:
+
+
+
+
+
(a) Is or hereinafter becomes a part of the public knowledge through no fault of investor; or
+
+
+
+
(b) investor can demonstrate was in its possession prior to the time of disclosure by TTI; or
+
+
+
+
(c) investor can demonstrate was received by it from a third party who has not received the same
+from TTI; or
+
+
+
+
(d) Is independently developed by or for investor by persons not having access to Information
+hereunder as shown by written records.
+
+
3. Investor shall obligate its employees and the employees of its affiliates who shall have access
+to any portion of the Information to protect the confidential and proprietary nature of the
+Information.
+
+
+
+
Investor
+
+
+
+
+
+
Signature
+
+
+
+
+
+
Name
+
+
+
+
+
+
Title
+
+
+
+
+
+
Date
+
+
+
Address where information should be sent:
+
+
+
+
+
+
+
+
+
Exhibit (e)(3)
+MUTUAL NONDISCLOSURE AGREEMENT
+This MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble
+Storage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware corporation (“HPE”).
+HPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with
+which each may disclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being furnished to each party, its affiliates, its subsidiaries and other individuals and entities
+controlled, directly or indirectly, by such party (“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with which such party has entered
+into confidentiality agreements with material terms that are substantially similar to those in this Agreement (collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to
+Associates for the limited purpose of evaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of this Agreement and to take or abstain from taking certain
+other actions, as described in this Agreement. The foregoing definition of Associates who may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A party disclosing
+Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as “the receiving
+party.”
1. Definition of Confidential Information; Use and Disclosure.
+“Confidential Information” means any information, technical data or know-how,
+including, but not limited to, that which relates to research, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic partners, stockholders, markets,
+software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing, finances, notes, analyses or studies and all tangible and intangible
+embodiments thereof of any kind whatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of a Transaction. The term “Confidential
+Information” shall be deemed to include those portions of any notes, analyses, compilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which
+contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of disclosure; (ii) prior to or
+after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other
+than the disclosing party or its Associates, which source would not be reasonably expected by the
+
+
+
+
+
+receiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is approved, in writing, for release by the
+disclosing party; or (v) the receiving party or its Associates can document was independently developed by the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.
+Each of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in
+connection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose any Confidential Information of the other party to third parties except those of its Associates who are
+required to have the information in order to evaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and shall instruct them to treat the information
+confidentially. The receiving party shall be responsible for any breach of this Agreement by its Associates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the
+Confidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the confidentiality of, and to avoid having Confidential Information of the other party enter the public domain,
+become publicly available, or be held by persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the receiving party utilizes to protect its own Confidential
+Information of a similar nature. Each party agrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its attention.
+2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential
+Information has been provided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties hereto and
+by their respective Associates and, subject to Section 3 of this Agreement, shall not be disclosed to any third party.
+3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled
+under applicable law, regulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court, arbitrator or administrative agency, whether or not as a result of a
+Transaction to which the Company has consented, to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or have taken place, or any of the terms,
+conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal
+compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by the receiving party and/or its
+Associates with the relevant provisions of this Agreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the relevant provisions of this Agreement,
+the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential Information of the disclosing party which its counsel advises
+
+
+
+
+
+is legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense
+of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which is so disclosed.
+4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any
+patent, copyright, trade secret or other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such Confidential Information
+solely for the purposes of determining whether to enter into, and the undertaking of or the advising with respect to, a Transaction.
+5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its
+Associates has made any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party or its Associates. Each party agrees that, except as set forth in a
+definitive agreement executed by the parties, neither party nor any of its Associates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s Confidential Information
+or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.
+
6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters
+specifically set forth herein, no contract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been executed and delivered. The parties further agree that each party reserves
+the right, in its sole discretion, to reject any and all proposals made by the other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.
+7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently
+or in the future be developing information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information. Nothing in this Agreement will prohibit the receiving party or its
+Associates from developing, manufacturing, marketing, selling, servicing or supporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar to or compete with the
+products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential Information, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential
+Information in connection with such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or consultants as a result of their having had access to
+Confidential Information of the other party or its Associates.
8. Residuals. The receiving party’s
+employees may use any Residuals for any purpose, provided that this paragraph does not grant or imply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right.
+“Residuals” means information that is retained, as general knowledge and experience, in the
+
+
+
+
+
+unaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of the receiving party’s obligations under
+this Agreement, but who no longer have access to such Confidential Information. However, Residuals does not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate the
+possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to use or disclose information known to the receiving party to be Confidential Information that is subject
+to this Agreement. The memory of an employee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or other aids to such memory,
+9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained
+herein, if during due diligence review, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE evaluating the potential Transaction may share such information with the
+Associates of HPE who are responsible for purchasing such products, software or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing Associates of the receiving
+party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential Information is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of
+HPE within fifteen (15) business days after such disclosure.
10. Termination of Discussions. Following
+written notice by one party to another of the termination of discussions between the parties, upon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to
+destroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement. Notwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information
+to the extent required pursuant to the regulatory compliance or record retention policies of such receiving party or Associate.
+11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential Information shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following the date of this Agreement.
+12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may
+include materials subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a
+commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or
+its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other
+applicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,
+
+
+
+
+ 13. Notice. Any notice or other communication required or permitted
+to be delivered to any party under this Agreement shall be in writing and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if delivered by hand or email (if
+submitting by email, substantive discussions to be included only in password protected attachments) (with confirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each
+case, with confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have specified in a written notice given to the other parties hereto):
+if to HPE:
+Hewlett Packard Enterprise Company
+3000 Hanover Street
+Palo Alto, CA 94304
+Attn: General Counsel
+if to the Company:
+Nimble Storage, Inc.
+211 River Oaks Parkway
+San Jose, CA 95134
+Attn: General Counsel
+GC@nimblestorage.com
+14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance
+with the laws of the State of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably consents to personal jurisdiction and venue in any federal or state court within
+Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agrees to waive trial by
+jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this Agreement.
+15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes
+all other prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All modifications of, waivers of and amendments to this letter agreement must be in
+writing and signed by both parties hereto.
16. Counterparts. This Agreement may be executed in any number
+of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by email, facsimile, PDF, or other
+similar electronic means shall be deemed an original counterpart and duly delivered.
+
+
+
+
+ [THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
+
+
+
+
+ IN WITNESS WHEREOF, the parties have executed this Mutual
+Non-Disclosure Agreement as of the day and year first above written.
+
+
+
+
+ |
+ |
+ |
+
+
+
+| NIMBLE STORAGE, INC. |
+
+ |
+ |
+
+| By: |
+ |
+ /s/ Suresh Vasudevan |
+
+| Name: |
+ |
+Suresh Vasudevan |
+
+| Title: |
+ |
+CEO |
+
+ |
+
+HEWLETT PACKARD ENTERPRISE
COMPANY |
+
+ |
+ |
+
+| By: |
+ |
+ /s/ Vishal Bhagwati |
+
+| Name: |
+ |
+Vishal Bhagwati |
+
+| Title: |
+ |
+SVP – Corporate Development |
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+ |
+
+
+
+ EXECUTION VERSION
+
+
+
+ |
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
NON-DISCLOSURE AND CONFIDENTIALITY
+AGREEMENT
+
+
+
+
+
+
THIS
+NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made
+effective as of February
+18, 2013, by and
+between Central European Distribution Corporation, a Delaware corporation (“CEDC”)
+and W&L Enterprises Ltd. (the “Recipient”).
+
+
+
+
WHEREAS,
+CEDC has issued (i) 3.00% Convertible Notes due 2013 (the “Convertible Notes”)
+and (ii) $380 million 9.125% Senior Secured Notes due 2016 and €430 ($556.6
+million) 8.875% Senior Secured Notes due 2016 (collectively, the “2016 Notes” and together with the
+Convertible Notes, the “Notes”).
+
+
+
+
WHEREAS,
+the Recipient holds 7,517,549 shares of CEDC’s outstanding common stock (the “Common
+Stock”).
+
+
+
+
WHEREAS
+the Recipient and CEDC wish to enter into discussions with respect to a potential
+restructuring of the Notes and Common Stock (a “Restructuring”).
+
+
+
+
WHEREAS, CEDC, in such
+discussions, may disclose certain confidential information to the Recipient in
+order to initiate, facilitate, and/or progress such restructuring discussions
+(the “Purpose”).
+
+
+
+
NOW
+THEREFORE, in consideration for receiving certain confidential information and
+other good and valuable consideration, the receipt and sufficiency of which are
+hereby acknowledged, the parties hereto agree as follows:
+
+
+
+
1.
+Scope of Confidential Information.
+
+
+
+
1.1
+Subject to Section 1.2 below, “Confidential Information” means
+confidential, secret, proprietary or other non-public information pertaining to
+the business, operations, brands, marketing plans, financial matters, legal
+matters, products, projects, business plans or practices, research and
+development, product development, intellectual property, financial models,
+trademarks, trade secrets, accounting and financing data, and methods of
+production, distribution or procurement, suppliers, distributors, consultants,
+advisors or employees, directors or officers of CEDC or any of its Subsidiaries
+(defined below) (together, the “CEDC Group”) that is disclosed or
+otherwise made available, either orally or in writing, by any member of the
+CEDC Group to the Recipient or its affiliates, agents, or advisors (including,
+without limitation, financial advisors, attorneys, banks and other sources of equity
+and debt financing and accountants) (collectively,
+“Representatives”).
+
+
+
+
1.2
+Notwithstanding anything herein to the contrary, Confidential Information shall
+not include any information that (a) is or becomes publicly available (other
+than through a breach of this Agreement by the Recipient), (b) is in the
+possession of or known to the Recipient or its Representatives prior to such
+information having been furnished to Recipient hereunder, (c) is independently
+conceived, developed or discovered by the Recipient or on its behalf, (d) is
+made available to the Recipient or its Representatives by any person other than
+a member of the CEDC Group without any known breach of any obligation of
+confidentiality of such other person, or (e) is the subject of a written
+confirmation from CEDC or any of its Subsidiaries or any member of the CEDC
+Group stating that any such information is not Confidential Information. In
+clarification of the foregoing, a general disclosure in the public domain will not cause more specific (but related)
+information to be excluded as Confidential Information under one of the above
+exceptions.
+
+
+
+
+
+
+
+
+
1.3 “Subsidiary”
+of any entity means any other entity in which such first entity owns or
+Controls, directly or indirectly, an amount of the voting securities, other
+voting interests or voting partnership interests sufficient to elect at least a
+majority of such other entity’s board of directors or other governing body (or,
+if there are no such voting interests, 50% or more of the equity interests of
+such other entity). For purposes of this Section 1.3, “Control” means
+the possession, directly or indirectly, of the power to direct or cause the
+direction of the management and policies of an individual, corporation,
+partnership, limited partnership or limited liability company, whether through
+the ownership of voting securities, by contract or otherwise.
+
+
+
+
2. Use and Disclosure of Confidential
+Information.
+
+
+
+
+
2.1 The Recipient agrees that
+all Confidential Information will be held and maintained by it in the strictest
+confidence, will be used by it solely and exclusively for the purpose of
+evaluating, negotiating and implementing a Restructuring, and will not,
+directly or indirectly, be used or disclosed by it for any other purpose
+whatsoever. CEDC acknowledges that Recipient is engaged in businesses similar
+to those conducted by CEDC and the CEDC Group or other industries in the
+ordinary course of Recipient’s business. The Recipient will use reasonable care
+to maintain the confidentiality of Confidential Information, provided that such
+care shall be at least as great as the precautions taken by the Recipient to
+protect its own confidential information of similar nature.
+
+
+
+
2.2
+The Recipient agrees that it will not, without the prior written consent of
+CEDC, directly or indirectly, disclose all or any portion of the Confidential
+Information, or the substance thereof, to any third party other than its
+Representatives in connection with the Purpose, except, subject to Section
+2.3 below, to the extent required by applicable law or legal process.
+
+
+
+
2.3
+The Recipient agrees that if the Recipient is required by any law, court or
+governmental order to disclose any Confidential Information, the Recipient will
+provide CEDC, to the extent practicable and legally permissible, with prompt
+written notice of such requirement so that CEDC or the applicable member of the
+CEDC Group may seek an appropriate protective order with respect thereto. If
+such an order is not obtained, only that portion of the Confidential
+Information shall be furnished that is legally required to be furnished, at the
+sole expense of CEDC or one of its Subsidiaries, and the Recipient shall
+exercise commercial efforts to obtain reliable assurances that confidential
+treatment will be accorded such Confidential Information. Notwithstanding the
+foregoing, notice to CEDC shall not be required where disclosure is made (i) in
+response to a request by a regulatory or self-regulatory authority, or (ii) in
+connection with a routine audit or examination by a bank examiner or auditor,
+and such request, audit or examination does not reference CEDC or this
+Agreement.
+
+
+
+
2.4
+The Recipient shall ensure that each of its Representatives who are either
+provided with Confidential Information, or otherwise have access to such
+Confidential Information, are informed of its confidential nature and are
+directed to abide by the terms of this Agreement applicable to Representatives or
+appropriate duties or obligations of confidentiality imposing confidentiality
+obligations on such Representatives (except that there shall be no requirement
+to so inform where the Representative to whom the information is to be
+disclosed is subject to professional obligations to
+maintain the confidentiality of the Confidential Information or is otherwise
+bound by requirements of confidentiality in relation to the Confidential
+Information). The Recipient agrees to be liable for any breach of this
+Agreement by the Recipient or its affiliates or Representatives. The Recipient
+shall use reasonable efforts to provide written notice to CEDC of any use or
+disclosure of Confidential Information in breach of this Agreement of which
+Recipient is aware, including without limitation written details regarding the
+circumstances and the identity of the individuals or entities who as a result
+received or may have received access to such Confidential Information.
+
+
+
+
+
+
+
-2-
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
3. Certain Rights and
+Limitations.
+
+
+
+
3.1
+The parties hereto are independent of one another and this Agreement does not
+create any agency, partnership or similar relationship between the parties
+hereto. CEDC acknowledges that neither the Recipient nor any of its
+affiliates, nor its or their Representatives, will be deemed to have made any
+representation or warranty or commitment with respect to the Purpose except as
+may be set forth in one or more final, legally binding definitive agreements.
+Except as otherwise provided by CEDC, the Recipient (i) acknowledges that
+neither CEDC nor any of its Representatives make any representation or warranty
+hereunder, either express or implied, as to the truth, accuracy or completeness
+of any Confidential Information, provided, however, that CEDC, the CEDC
+Group and any of their Representatives shall use good faith efforts to ensure
+that all Confidential Information furnished to Recipient hereunder is true,
+accurate and complete to the best of their knowledge, and (ii) agrees, to the
+fullest extent permitted by law that in the absence of fraud or willful
+misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives
+shall have any liability to the Recipient or its Representatives on any basis
+(including, without limitation, in contract, tort, under federal or state
+securities laws or otherwise) as a result of the review by the Recipient or its
+Representatives or the use of the Confidential Information by the Recipient or
+its Representatives in accordance with the provisions of this Agreement.
+
+
+
+
3.2
+The Recipient agrees that, upon written request by CEDC, all Confidential
+Information (and all copies, summaries and notes of the contents or parts
+thereof) and all Company property received by the Recipient shall, as soon as
+reasonably practicable, be either returned to CEDC or, to the extent
+technically practicable, destroyed (at the Recipient’s or its Representatives’
+option), except that Recipient and its Representatives may retain copies of
+Confidential Information as is required to comply with applicable law or
+regulation or professional standards or internal compliance requirements. The
+Recipient’s obligations under Section 2 hereof shall survive the return
+of such tangible embodiments of Confidential Information until termination of
+this Agreement. Notwithstanding anything to the contrary in this Agreement,
+neither Recipient nor any of its Representatives shall be required to delete
+electronically stored Confidential Information to the extent such deletion
+would be technologically impracticable or inconsistent with the archival
+records retention policy of the Recipient or its Representatives.
+
+
+
+
3.3
+The Recipient shall not remove, obscure, overprint, deface or destroy any
+notice of confidentiality, copyright, trademark, logo, legend or other notices
+of ownership or confidentiality from any originals or copies of Confidential
+Information the Recipient obtains from the CEDC Group.
+
+
+
+
+
+
+
+
+
+
+
-3-
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
3.4 CEDC understands and
+acknowledges that the Recipient and an affiliate of the Recipient are currently
+reporting persons with respect to CEDC’s common stock on a Schedule 13D under
+the provisions of §§ 240.13d-1(a) and 13d-2(a) of the United States
+Securities Exchange Act of 1934, among others, and that accordingly the
+Recipient and its affiliate will have ongoing disclosure obligations
+thereunder, which shall not be restricted or limited by this Agreement,
+including that this Agreement shall be disclosed and publicly filed as an
+amendment to such Schedule 13D.
+
+
+
+
4.
+Remedies.
+The Recipient acknowledges that a breach of any of the terms of this Agreement
+may cause irreparable harm to CEDC for which CEDC may not be adequately
+compensated by money damages. Accordingly, the Recipient agrees that, in
+addition to all other remedies available to CEDC, including any member of the
+CEDC Group, in an action at law, in the event of any breach or threatened
+breach by the Recipient of the terms of this Agreement, CEDC shall, without the
+necessity of proving actual damages or posting any bond or other security, be
+entitled to seek temporary and permanent injunctive relief, including, but not
+limited to, specific performance of the terms of this Agreement. Each party's
+rights and obligations under this Agreement are cumulative and are in addition
+to and not in limitation of such party's rights and obligations under law,
+equity or any other written agreement.
+
+
+
+
5. Miscellaneous.
+
+
+
+
5.1
+This Agreement shall be governed by and construed and take effect as an
+enforceable contract in accordance with the laws of the State of New York
+governing such agreements, without regard to conflicts-of-law principles
+thereof that would require applicability of any other law. The parties hereto
+agree that any dispute between them relating to this Agreement will be resolved
+solely in the manner set forth in clause (i) below:
+
+
+
+
(i) Each of the parties hereto
+irrevocably submits to the jurisdiction of the United States District Court
+located in the State of New York and in the Borough of Manhattan, and all
+appellate courts relating thereto, for the purpose of any suit, action,
+proceeding or judgment relating to or arising out of this Agreement. Service of
+process in connection with any such suit, action or proceeding may be served on
+each party hereto anywhere in the world by the same methods as are specified
+for the giving of notices under this Agreement. Each party hereto irrevocably
+waives any objection to the laying of venue of any such suit, action or
+proceeding brought in such courts and irrevocably waives any claim that any
+such suit, action or proceeding brought in any such court has been brought in
+an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A
+TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS
+THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
+
+
+
+
5.2
+Any notices or other correspondence (hereinafter collectively referred to as “correspondence”)
+required or permitted to be given hereunder shall be in writing and shall be
+sent by postage prepaid first class mail, courier or facsimile or delivered by
+hand to the party to whom such correspondence is required or permitted to be
+given hereunder, and shall be deemed sufficient upon receipt when delivered
+personally or by courier, overnight delivery service or confirmed facsimile, or
+three (3) Business Days after being deposited in the regular mail as certified
+or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be
+notified at such party’s address or facsimile number as set forth below:
+
+
+
+
+
+
+
-4-
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
(a) All
+correspondence to the CEDC Group shall be addressed as follows:
+
+
+
+
Central European
+Distribution Corporation
+
+
Bobrowiecka 6
+
+
00-728 Warsaw
+
+
Poland
+
+
Attention: Grant
+Winterton
+
+
Facsimile: +48 22 456 60 01
+
+
+
+
with a copy to
+
+
+
+
Skadden, Arps, Slate, Meagher
+& Flom (UK) LLP
+
+
40 Bank St., Canary Wharf
+
+
London E14 5DS
+
+
UK
+
+
Attention: Scott Simpson, Esq.
+
+
+
Facsimile: +44 20 7519 7070
+
+
+
+
(b) All correspondence to the
+Recipient shall be addressed as follows:
+
+
+
+
W&L
+Enterprises Ltd.
+
+
Craigmuir
+Chambers,
+
+
P.O.
+Box 71,
+
+
Road
+Town,
+
+
Tortola,
+
+
+
British
+Virgin Islands
+
+
Attention: Mark Kaufman
+
+
Facsimile: +7-495-232-6138
+
+
+
+
with copies to
+
+
+
+
Darrois Villey Maillot Brochier
+A.A.R.P.I.
+
+
69, avenue Victor Hugo
+
+
Paris 75783
+
+
France
+
+
Attention: Ben Burman, Esq.
+
+
Facsimile: + 33 1 45 02 49 59
+
+
+
+
and
+
+
+
+
Wachtell, Lipton Rosen & Katz
+
+
51 West 52nd Street
+
+
New York, New York 10019
+
+
Attention: Adam Emmerich, Esq.
+
+
Facsimile: (212) 403-2234
+
+
+
+
+
+
+
+
+
+
+
-5-
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
(c)
+Either party may change the address to which correspondence to it is to be
+addressed by written notification as provided for herein.
+
+
+
+
5.3
+This Agreement contains the complete and exclusive agreement of the parties
+with respect to the subject matter hereof and supersedes all prior and
+contemporaneous agreements and understandings whether written or oral, express
+or implied. This Agreement shall be binding upon and inure to the benefit of
+the parties, and their respective successors and permitted assigns, including
+without limitation the heirs, executors and legal representatives of each such
+party. The Recipient acknowledges and agrees that all members of the CEDC
+Group are third party beneficiaries of this Agreement. Except where expressly
+indicated otherwise, the words “written” or “in writing” shall include, but not
+be limited to, written or printed documents, electronic and facsimile
+transmissions and computer disks or tapes (whether machine or user readable).
+If any provision of this Agreement is held invalid, illegal or unenforceable by
+a court of competent jurisdiction, such shall not affect any other provision of
+this Agreement, which shall remain in full force and effect to the fullest
+extent permitted by applicable law. Upon such determination of invalidity or
+unenforceability, the parties shall negotiate in good faith to modify this
+Agreement so as to effect the original intent of the parties as closely as
+possible in a reasonably acceptable manner in order that the transactions
+contemplated hereby may be consummated as originally contemplated to the
+fullest extent possible. No amendment, modification or alteration of the terms
+of this Agreement shall be effective unless made in writing and executed by
+both parties hereto. A failure or delay in exercising any right in respect to
+this Agreement will not be presumed to operate as a waiver, and a single or
+partial exercise of any right will not be presumed to preclude any subsequent
+or further exercise of that right or the exercise of any other right. Any such
+waiver shall be effective only in the specific instance and for the purpose
+given. This Agreement may be signed in one or more counterparts, each of which
+shall be deemed to be an original for all purposes.
+
+
+
+
6.
+Securities Laws. The
+Recipient acknowledges that it is aware (and, if applicable, that its
+Representatives who are apprised of this matter have been advised) that the
+United States securities laws prohibit any person who has material non-public
+information about a company from purchasing or selling securities of such
+company, or from communicating such information to any other person under
+circumstances in which it is reasonably foreseeable that such person is likely
+to purchase or sell such securities. The Recipient agrees that, to the extent
+that it has actually received Confidential Information pursuant to this
+Agreement that constitutes material non-public information, it will not trade
+any securities of CEDC or any of its Subsidiaries prior to the termination of
+this Agreement and that it will not use any Confidential Information in
+contravention of the United States securities laws.
+
+
+
+
7.
+Termination.
+
+
+
+
7.1
+The provisions of this Agreement shall continue in full force and effect at all
+times until the earliest to occur of (i) the filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or Convertible Notes, provided that, to the
+extent CEDC and the Recipient continue discussions on the terms of a Restructuring
+following such filing, this period shall extend until the filing of an amended exchange offer, offering memorandum or disclosure statement reflecting such discussions or
+(ii) 9:00 a.m. (GMT)
+on March 5, 2013, whereupon this Agreement shall terminate and
+be of no further force or effect (the “Termination Date”), other than
+with respect to the rights and obligations of CEDC and Recipient per Section
+7.2 hereof.
+
+
+
+
+
+
+
+
+
-6-
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
7.2 On the Termination Date,
+CEDC shall publicly file a document (the “Cleansing Document”) containing
+all of the written and oral Confidential Information that constitutes material
+non-public information and that was provided by CEDC or its advisors to any of
+(a) the Recipient or its Representatives or (b) any holder of securities who is
+subject to a confidentiality agreement substantially similar to this Agreement
+(or to such holder’s Representatives) that was subsequently shared with the
+Recipient or its Representatives; provided that such Confidential Information
+shall not include any information only disclosed to the Recipients' advisors
+and specifically designated as ‘Non-Cleansing Information’ by CEDC at the time
+of such disclosure (such Confidential Information other than the ‘Non-Cleansing
+Information’ being the “Disclosure Information”). As promptly as
+practicable, CEDC will provide the Recipient with a draft of the Cleansing
+Document. The Cleansing Document shall be the offering memorandum and/or
+disclosure statement and/or Form 8-K or any periodic report required or
+permitted to be filed under the Exchange Act with the Securities Exchange
+Commission (the “SEC”) or, if the SEC’s EDGAR filing system is not
+available, in such other manner that CEDC reasonably determines results in
+public dissemination of such information. If CEDC does not file the Cleansing
+Document on the Termination Date as required in accordance with this Section
+7.2, then Recipient and/or its Representatives shall be entitled to disclose
+the Confidential Information that was provided by CEDC or any of its Subsidiaries
+hereunder without liability to the extent that Recipient or its Representatives
+reasonably believes that the information constitutes material non-public
+information that is required to allow it to freely trade, through the issuance
+of a press release or similar form of public communication, without any
+liability or breach under this Agreement (such an announcement, the “Recipient’s
+Cleansing Announcement”). For the avoidance of doubt, if
+the Cleansing Document filed by CEDC pursuant hereto is not in sufficient
+detail to ensure that, in the reasonable opinion of each of the Recipients or
+their Representatives, the Recipients and their Representatives will be
+cleansed of any Confidential Information hereunder such that, following the
+filing of the Cleansing Document by CEDC, no Recipient shall be restricted,
+prevented or prohibited from trading any securities under applicable insider
+dealing or market abuse laws or regulations in any jurisdiction or pursuant to
+any other applicable laws or regulations, then the Recipients may make a
+Recipient’s Cleansing Announcement in the manner set forth above in this
+Section 7.2.
+
+
+
+
[Signatures
+on the Following Page ]
+
+
+
+
+
+
+
+
+
+
+
+
-7-
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
IN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that the persons signing this Agreement are duly authorized to do so.
+
+
+
+
+
+
+
+
+
+
+
+ |
+
+ CENTRAL EUROPEAN DISTRIBUTION CORPORATION
+
+
+
+
+
+ By: /s/ Grant Winterton
+
+
+
+ Print Name: Grant Winterton
+
+
+
+ Title: Chief Executive Officer
+
+ |
+
+
+
+ W&L ENTERPRISES LTD.
+
+
+
+
+
+
+
+ By: /s/ Mark Kaufman
+
+
+
+ Print Name: Mark Kaufman
+
+
+
+ Title: Director
+
+ |
+
+
+
+ |
+
+ |
+
+
+
+ |
+
+
+
+
+
+
+
+
+
+
\ No newline at end of file
diff --git a/raw/1466739_0001002014-12-000470_exh10-4.htm b/raw/1466739_0001002014-12-000470_exh10-4.htm
new file mode 100644
index 0000000000000000000000000000000000000000..8483c6df2f3fa5905e2e77baaa2077784c8132b7
--- /dev/null
+++ b/raw/1466739_0001002014-12-000470_exh10-4.htm
@@ -0,0 +1,526 @@
+
+
+ exh10-4.htm
+
+
+
+
+
+
+Exhibit 10.4
+
+
+
+
+
+
+
+
+NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE
+
+AND WORKING AGREEMENT
+
+
+
+
+This Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered into by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation (“Receiving Party”) as of February 12, 2012.
+
+
+
+
+
+
+
+RECITALS
+
+
+
+
+WHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not known by Receiving Party;
+
+
+
+
+WHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and
+
+
+
+
+WHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal obligations.
+
+
+
+
+
+
+
+AGREEMENT
+
+
+
+
+NOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:
+
+
+
+
+1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party which shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business Source, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing documentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If Receiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business Source, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.
+
+
+
+
+2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner access, contact, solicit or conduct any business with a Business Source that has been made available by and through Monnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and
+
+
+
+
+Page 1 of 4
+
+
+
+
+
+
+
+
+
+
+
+
+shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.
+
+
+
+
+2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their affiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and granted an expressed written permission of Monnit.
+
+
+
+
+3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties together to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be negotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any business transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted without the prior agreement of Monnit’s compensation for such business transaction(s).
+
+
+
+
+3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the circumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it would have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of the recovery of such compensation.
+
+
+
+
+4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the Parties therein, with renewal to be agreed upon between the signatories.
+
+
+
+
+5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah applicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict of laws.
+
+
+
+
+7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of individual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their successors and assigns.
+
+
+
+
+8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written consent of the other party. Any such attempt by one party without the prior written consent of the other party shall be void.
+
+
+
+
+9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+Page 2 of 4
+
+
+
+
+
+
+
+
+
+
+
+
+10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile copies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.
+
+
+
+
+Accepted and Agreed: On this 13 day of February, 2012.
+
+
+
+
+
+
+
+
+
+
+|
+ MONNIT CORP.
+ |
+ |
+ |
+
+ RECEIVING PARTY
+ |
+
+| |
+ |
+ |
+ |
+
+|
+ By:
+ |
+ |
+ |
+
+ By: MICHEL ST-PIERRE
+ |
+
+|
+ Name:
+ |
+ |
+ |
+
+ Name: Michel St-Pierre
+ |
+
+|
+ Is:
+ |
+ |
+ |
+
+ Its:
+ |
+
+
+
+
+
+
+
+
+
+
+
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+Exhibit A
+
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+
+
+Within 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to Receiving Party.
+
+
+
+
+Business Source provided by Monnit:
+
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+
+_________________________________________________________________________________
+
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+_________________________________________________________________________________
+
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+_________________________________________________________________________________
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+_________________________________________________________________________________
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\ No newline at end of file
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index 0000000000000000000000000000000000000000..c194c86438432638817cc66a1b7450b4cc6b5554
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+++ b/raw/1473637_0001432093-12-000764_ex10-34.htm
@@ -0,0 +1,300 @@
+
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+ ex10-34.htm
+
+
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+
+
Exhibit 10.34
+
+
+
+
+
+
+
NON-DISCLOSURE AGREEMENT
+
+
+
+
+
This Non-Disclosure agreement, (hereinafter "Agreement") having an effective date of September 18,2012, is made and entered into among the Parties listed in Schedule A each individually referred to as "Party" and collectively called "Parties."
+
+
+
+
WHEREAS each Party is considering disclosing certain technical, marketing, and business information, including ideas, discoveries, inventions, software code, prototypes, price information, future product plans, manufacturing methods, and other ideas of a technical or economic nature, which is considered to be confidential or proprietary (hereinafter "Proprietary Information").
+
+
+
+
WHEREAS the Parties have concluded that it is in their mutual interest for them to disclose Proprietary Information each to the other for the purpose of their assessing the possibility of entering into a business transaction amongst themselves ("Purpose").
+
+
+
+
In consideration of the mutual understanding of the Parties, it is agreed as follows:
+
+
+
+
1. As used in this Agreement, in each case where a party is disclosing Proprietary Information that party is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient".
+
+
+
+
+
2. Recipient agrees to hold Proprietary Information in confidence and to protect it against disclosure to the public and third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by Recipient to protect its own trade secrets and other confidential information from disclosure to the public and to third parties. Such measures shall include restricting access to Proprietary Information only to Recipient's employees or agents whose access is reasonably necessary to carry out the Purpose and who have legally enforceable obligations to Recipient that would conform to the obligations of this Agreement.
+
+
+
+
3. Recipient agrees to use Proprietary Information only for the Purpose. Proprietary Information shall not be reproduced in any other form except as required to accomplish the Purpose
+
+
+
+
4. Recipient agrees not to reverse-engineer or have a third party reverse-engineer the Proprietary Information without first obtaining the express, written consent of Discloser.
+
+
+
+
5. The obligations of confidentiality and restrictions on use set forth in Paragraph 2 above do not apply to information that Recipient can demonstrate by competent physical evidence:
+
+
+
+
(a) Was already known by Recipient prior to receipt from Discloser or becomes known by Recipient independently of Discloser through no wrongful act of Recipient;
+
+
+
+
(b) is now, or becomes, publicly known through no violation of this Agreement;
+
+
+
+
+
(c) is disclosed pursuant to law, regulation or lawful order or process, provided that Recipient promptly notifies Discloser so as to permit Discloser to oppose or limit such disclosure; or
+
+
+
+
(d) is approved in writing by Discloser for disclosure to a third party by Recipient.
+
+
+
+
Proprietary Information disclosed by Discloser to Recipient shall not be deemed to come under the above exceptions merely because it is embraced by more general information that is or becomes subject to the above exceptions. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Recipient.
+
+
+
+
+
+
+
+
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+
+
+
6. Neither the execution of this Agreement, nor the disclosure of any Proprietary Information hereunder, shall be construed as granting Recipient any immunity or license to use Proprietary Information in any way {whether expressly, by implication, estoppel or otherwise), or any right to ownership, with respect to Proprietary Information or other intellectual property right(s) now or hereafter owned or controlled by Discloser.
+
+
+
+
7. Nothing in this Agreement shall be construed to impose any obligation on Discloser to disclose information to the Recipient, or to enter into any other agreement of any nature. This Agreement is for protecting Proprietary Information only. No rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement.
+
+
+
+
8. Discloser makes no representations, extends no warranties of any kind, either express or implied, and assumes no responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any information, including Proprietary Information, obtained or used by Recipient under this Agreement. The information, including Proprietary Information, is provided "AS IS," without warranty or guarantee of any kind and Discloser shall not be liable to the Recipient for any damages, loss, expense or claim of loss arising of any kind from the use of or reliance upon such information, including Proprietary Information.
+
+
+
+
9. This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Province of Ontario without reference to any conflict of law provisions thereof.
+
+
+
+
10. Recipient agrees to comply with all export and import laws and regulations of all countries involved in the data transfers.
+
+
+
+
11. This Agreement constitutes the entire agreement and understanding of the Parties related to confidentiality and limited use of Proprietary Information.
+
+
+
+
12. Duplicate counterparts of this Agreement may be executed and delivered, each of which shall be considered an original. All additions or modifications to this Agreement must be made in writing and executed by the Parties.
+
+
+
+
13. This Agreement shall remain in force for a period two (2) years, unless terminated earlier on thirty (30) days written notice provided by either Party. However, the obligations of confidentiality and limited use of Proprietary Information shall survive the termination of the Agreement.
+
+
+
+
14. This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable.
+
+
+
+
15. In the event of a breach or threatened breach by Recipient of any of the provisions of the Agreement, Discloser, in addition to any other remedies available to it under law, at equity or otherwise, shall be entitled to seek an injunction restraining Recipient from the performance of acts that constitute a breach or threatened breach of this Agreement.
+
+
+
+
16. This Agreement may not be assigned, delegated, sold or transferred, whether by operation of law or otherwise, by Recipient without the prior written consent of Discloser, and any attempted delegation or transfer of rights, duties or obligations under this Agreement without such written consent shall be void and of no effect.
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
17. All notices under this Agreement shall be in writing and shall be sent to the Party being served by facsimile or certified mail return receipt requested at that Party's address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party's signatory to this Agreement. The date of service shall be deemed to the day following the day on which the notice was transmitted or posted as the case may be.
+
+
+
+
+
+
+
+
+
+
+|
+ This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
+ |
+
+
+
+
+
+
+
+
+
Schedule A
+
+
+
+
Parties to the Agreement
+
+
+
+
+
+
+
The Parties have executed this Agreement as of the dates set forth below.
+
+
+
+
+
+
+
KLEEN-FLO TUMBLER INDUSTRIES LIMITED
+
+
+
+
75 ADVANCE BLVD, BRAMPTON, ON, L6T 4N1
+
+
+
+
+
+| /s/ K.J. Osborne |
+
+ Per (print) K.J. Osborne
+ |
+
+| |
+ |
+
+|
+ SEPTEMBER 18, 2012
+ |
+ |
+
+| |
+ |
+
+| |
+ |
+
+|
+ ECO-TEK GROUP INC.
+ |
+ |
+
+| |
+ |
+
+|
+ Address: 15-65 WOODSTREAM BLVD, WOODBRIDGE, ON, L4L 7X6
+ |
+ |
+
+| |
+ |
+
+|
+ Per:
+ |
+
+ Per (print) ____________________________
+ |
+
+| Date: SEPTEMBER 18, 2012 |
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
Exhibit (d)(2)
+
+
+
+CONFIDENTIALITY
+AGREEMENT
+
+
+
+This Confidentiality
+Agreement (this “Agreement”) is made by and between RetailMeNot, Inc. (“RetailMeNot”),
+and Valassis Communications, Inc. (“Valassis”).
+
+
+
+1. Background.
+RetailMeNot and Valassis intend to engage in discussions and negotiations concerning a possible transaction involving RetailMeNot
+and/or its Affiliates in which Valassis and/or one or more of its Affiliates would acquire all or a substantial portion of the
+equity interests or business of RetailMeNot (“Possible Transaction”). An “Affiliate”
+of a specified person or entity includes any other person or entity that, directly or indirectly through one or more intermediaries,
+controls or is controlled by, or is under common control with, such specified person or entity. For the purpose of evaluating,
+discussing, negotiating and/or implementing the Possible Transaction (the “Purpose”), it is anticipated
+that certain confidential information concerning each party (in such capacity, the “Disclosing Party”)
+and/or its respective Affiliates, including without limitation, confidential information and materials developed by or concerning
+the business, operations, plans, procedures, properties, assets, locations and financial affairs, pricing, supplier and customer
+information, names and expertise of employees and consultants, trade secrets and intellectual property of the Disclosing Party
+and/or its Affiliates, and past, present or future products or services, research, development, improvements, procedures, processes,
+techniques, designs, data, drawings, compilations, information, and technical information and data related to the business affairs
+and operations of the Disclosing Party and/or its Affiliates (the “Confidential Information”) has been
+disclosed or delivered or will be disclosed or delivered, whether disclosed orally or disclosed or delivered in written, electronic
+or other form or media, by or on behalf of the Disclosing Party to the other party (in such capacity, the “Recipient”)
+and to certain of its Affiliates, and its and their respective general partners, managing members, directors, officers, employees,
+advisors and other representatives of the Recipient or such Affiliates, including attorneys, accountants, consultants, investment
+bankers and financing sources (collectively, “Representatives”). The Recipient may disclose Confidential
+Information to Representatives who have a need to know such information in connection with the Purpose and whom the Recipient shall
+make aware of, and direct to comply with, the terms set forth herein. The Recipient shall be responsible for any breach or failure
+to perform obligations expressly applicable to Representatives under this Agreement by its Representatives. Notwithstanding anything
+to the contrary in this Agreement, Valassis will not share, and will not permit its Affiliates or Representatives to share, any
+Confidential Information with financing sources without the prior written consent of RetailMeNot, which consent shall not be unreasonably
+withheld. RetailMeNot hereby consents to Credit Suisse Group AG and Bank of America Corporation and each of their respective Affiliates
+serving as debt financing sources to Valassis and/or its Affiliates.
+
+
+
+2. Confidential
+Information. As used in this Agreement, the term “Confidential Information” shall be deemed to include any notes,
+analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives
+to the extent they contain, reflect or are based upon, in whole or in part, any Confidential Information furnished to the Recipient
+or its Representatives pursuant hereto. Notwithstanding the foregoing, the term “Confidential Information” does not
+include information which Recipient can demonstrate (a) was known by the Recipient or its Affiliates or Representatives in their
+capacity as such prior to the time of disclosure to the Recipient by or on behalf of the Disclosing Party, (b) was or becomes available
+to the public other than as a result of its disclosure by the Recipient or its Representatives in breach of this Agreement, (c)
+was, is or becomes available to the Recipient or its Representatives in their capacity as such from a third party who is not known
+by the Recipient or such Representative to be under any obligation of confidentiality to the Disclosing Party with respect thereto
+or otherwise prohibited from disclosing such information by any legal, contractual or fiduciary obligation, or (d) was or is independently
+developed by the Recipient or its Representatives without use of the Confidential Information.
+
+
+
+
+
+
+
+
+
+
+3. Use
+and Disclosure of Confidential Information. The Recipient, and its Representatives who have received Confidential Information
+pursuant hereto, shall use the Confidential Information only for the Purpose. The Confidential Information shall not be used for
+any other purpose without the prior written consent of the Disclosing Party. The Recipient and such Representatives shall hold
+the Confidential Information in confidence, and provide it with at least the same degree of care that it uses to protect its own
+confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances, and shall
+not disclose any Confidential Information, except as permitted by paragraph 1 hereof or where such disclosure is requested or required
+by law, regulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange,
+market or automated quotation system on which any of an entity’s securities are listed or quoted), regulatory body, judicial
+process, or listing agreement (collectively, “Law”). The Recipient agrees, to the extent permitted under
+applicable Law, to give the Disclosing Party notice of any such request or requirement as soon as reasonably practicable so that
+the Disclosing Party may, at the Disclosing Party’s own expense, seek a protective order, confidential treatment request
+or other appropriate remedy, and the Recipient shall exercise commercially reasonable efforts to assist the Disclosing Party in
+obtaining such order or remedy. If, in the absence of a protective order, the Recipient is nonetheless compelled to disclose Confidential
+Information, the Recipient may disclose without liability hereunder that portion of the Confidential Information which the Recipient
+or its Representatives is legally compelled to disclose.
+
+
+
+4. Additional
+Non-Disclosure Obligations. Except where such disclosure is requested or required by Law (and then subject to the applicable
+terms of Section 3 above), without the prior written consent of the other party, each of the Disclosing Party and the Recipient
+will not, and each will direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a)
+that the Confidential Information has been made available to the Recipient or its Representatives, (b) that investigations, discussions
+or negotiations are taking or have taken place concerning a Possible Transaction, or (c) any terms or other facts with respect
+to the Possible Transaction, including the status or existence thereof.
+
+
+
+5. Ownership
+of Confidential Information. The Recipient agrees that nothing in this Agreement shall be deemed to transfer ownership of Confidential
+Information or any patent, copyright, trade secret, trademark and other intellectual property rights therein. No license or conveyance
+of any such rights to the Recipient is granted or implied under this Agreement.
+
+
+
+6. Return
+or Destruction of Confidential Information. The Disclosing Party may elect at any time to terminate further access by the Recipient
+and its Representatives to the Confidential Information. The Recipient shall, upon the written request of the Disclosing Party,
+at its sole election, promptly, and in any event within 10 business days, either return or destroy all Confidential Information
+received by the Recipient and its Representatives (and all copies and reproductions thereof). Any destruction of materials shall
+be confirmed by the Recipient in writing. Notwithstanding the foregoing, the Recipient and its Representatives may each retain
+copies of the Confidential Information for compliance with applicable laws, rules or regulations, bona fide data retention policies
+or to establish its rights under this Agreement. Any Confidential Information that cannot be or is not returned or destroyed (such
+as oral Confidential Information) shall remain confidential, subject to the terms of this Agreement.
+
+
+
+
+
+
+
+
+
+
+7. No
+Representations or Warranties. The Recipient understands and acknowledges that neither the Disclosing Party nor any of its
+representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential
+Information, except as may be set forth in a definitive agreement with respect to the Possible Transaction. The Recipient agrees
+that neither the Disclosing Party nor any of its representatives shall have any liability to the Recipient or any of the Recipient’s
+Representatives relating to or resulting from the Recipient’s or their use of the Confidential Information or any errors
+therein or omissions therefrom except as may be set forth in a definitive agreement with respect to the Possible Transaction. To
+the extent Confidential Information includes materials subject to the attorney-client privilege, the Disclosing Party is not waiving,
+and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar
+protections and privileges as a result of disclosing any Confidential Information (including Confidential Information related to
+pending or threatened litigation) to the Recipient or any of its Representatives.
+
+
+
+8. No
+Obligation to Consummate a Possible Transaction. This Agreement binds the parties only with respect to the matters expressly
+set forth herein. As such, unless and until a definitive written agreement regarding a Possible Transaction between the Disclosing
+Party and the Recipient has been executed, (a) neither the Disclosing Party nor the Recipient nor their respective Representatives
+or Affiliates will be under any legal obligation of any kind whatsoever to negotiate or consummate a Possible Transaction and (b)
+neither party will have any claim whatsoever against the other party or its Affiliates, or any of their respective directors, officers,
+members, shareholders or representatives arising out of or relating to any Possible Transaction, except pursuant to this Agreement.
+
+
+
+9. Injunctive
+Relief. The parties hereto agree that money damages may not be a sufficient remedy for a breach of this Agreement, and that
+the non-breaching party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for
+any such breach. Such remedies shall not be deemed to be the exclusive remedies for breach of this Agreement, but shall be in addition
+to all other remedies available at law or in equity to a party.
+
+
+
+10. No
+Waiver. No failure or delay by the parties hereto in exercising any right hereunder shall operate as a waiver thereof, nor
+shall any single or partial waiver thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.
+
+
+
+11. Termination.
+This Agreement shall continue in full force and effect during the term hereof regardless of whether the parties negotiate or consummate
+a Possible Transaction. This Agreement will terminate automatically upon the earlier of (a) 24 months after the date hereof, or
+(b) the date on which a definitive binding agreement, if any, with respect to the Possible Transaction is entered into between
+the Disclosing Party and the Recipient or their respective Affiliates.
+
+
+
+
+
+
+
+
+
+
+12. Choice
+of Law. This Agreement shall, to the fullest extent permitted under applicable laws, be construed and enforced in accordance
+with the laws of the State of Delaware and of the United States applicable in Delaware, as applied to contracts made and to be
+performed entirely within Delaware, without giving effect to principles
+of conflict of law requiring the application of the laws of another jurisdiction. Each party hereby irrevocably submits to the
+personal jurisdiction of the state and federal courts located in Delaware, over any suit, action or proceeding arising out of or
+relating to this Agreement. Each party hereby irrevocably waives, to the fullest extent permitted by law, any objection which it
+may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim
+that any such suit, action or proceeding brought in such court has been brought in an inconvenient forum. Each party further agrees
+that a final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon such party.
+THE PARTIES HEREBY IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
+AGREEMENT.
+
+
+
+13. Assignment.
+This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
+Notwithstanding the foregoing, however, the Disclosing Party shall not assign this Agreement, or delegate its duties or obligations
+hereunder, without the prior written consent of the Recipient. Any purported assignment or delegation without such consent shall
+be void and unenforceable.
+
+
+
+14. Authority.
+Each party represents and warrants that it possesses all necessary powers and authority to enter into and be bound by this Agreement.
+
+
+
+15. Severability.
+If any provision of this Agreement, or the application thereof to any person, place or circumstance, shall be held by a court of
+competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provision as applied to other
+persons, places or circumstances shall remain in full force and effect.
+
+
+
+16. Costs.
+Except as expressly provided in this Agreement, each party shall pay its own costs and expenses incurred in connection with the
+Possible Transaction, including the negotiation, preparation and execution of this agreement and its evaluation and review of any
+Confidential Information.
+
+
+
+17. Notices.
+Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given
+as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt;
+(c) by e-mail or facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered
+mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or to such
+other address as either party may provide in writing.
+
+
+
+
+
+
+
+
+
+
+18. Miscellaneous.
+This Agreement (i) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, superseding
+all prior agreements, written or oral, (ii) may not be amended, except in writing executed by duly authorized officers or agents
+of each of the parties and (iii) may be executed in counterparts, including by facsimile or electronic mail (including pdf or any
+electronic signature complying with the United States federal ESIGN Act of 2000).
+
+
+
+
+19. Non-Solicitation.
+For a period of 12 months after the date of this Agreement, the Recipient agrees not to, directly or indirectly, induce, recruit,
+encourage or solicit for employment, offer employment to, employ, or engage as an independent contractor (the “Prohibited
+Activities”), (i) any members of the executive management team of the Disclosing Party or (ii) any other employee
+of the Disclosing Party to whom the Recipient was introduced, exposed, or whom it became aware of as a result of the consideration,
+evaluation or negotiation of a Possible Transaction (any such person described in clauses (i) or (ii), a “Covered Employee”);
+provided that the Recipient shall not be restricted from placing in general circulation (which shall
+include websites or mobile applications such as Indeed, Linkedin, Monster.com, Craigslist or the like) any solicitation
+for employment (including advertisements placed by a recruiting firm or similar organization) not specifically directed toward
+any of the Covered Employees or from employing any person who responds thereto; provided, further, that the restrictions of this
+paragraph shall not apply to any Covered Employee who has not been employed by the Disclosing Party for a period of at least three
+months prior to such solicitation or hiring, as the case may be.
+
+
+
+20. Standstill.
+In consideration of, and only upon, the Confidential Information being furnished to Valassis pursuant to this Agreement, Valassis
+agrees that, for a period of 12 months from the date of this Agreement (the “Standstill Period”), Valassis
+shall not, directly or indirectly (through any of its Affiliates or its and their respective Representatives with knowledge of
+the Possible Transaction), unless specifically approved in advance by the Board of Directors of RetailMeNot (the “Board”)
+in writing:
+
+
+
+(a) in
+any manner acting alone or in concert with others, acquire, agree to acquire or make any proposal or offer to acquire or effect,
+directly or indirectly, by means of purchase, merger, business combination or in any other manner, beneficial ownership of any
+securities of RetailMeNot, direct or indirect rights to acquire any securities of RetailMeNot (including any derivative securities,
+rights or options with economic equivalents of ownership of any of such securities), any right to vote or to direct the voting
+of any securities of RetailMeNot or any assets of RetailMeNot,
+
+
+
+(b) make,
+or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are
+used in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence any person
+with respect to the voting of, any voting securities of RetailMeNot,
+
+
+
+(c) form,
+join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act
+of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of RetailMeNot,
+
+
+
+
+
+
+
+
+
+
+(d) otherwise
+act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors, governing
+instruments, policies or affairs of RetailMeNot,
+
+
+
+(e) make
+any public disclosure, or take any action that would reasonably be expected to require RetailMeNot to make any public disclosure,
+with respect to any of the matters set forth in this Agreement (except as required by applicable Law),
+
+
+
+(f) disclose
+any intention, plan or arrangement inconsistent with the foregoing (except as required by applicable Law), or
+
+
+
+(g) enter
+into any agreements, or advise, assist or encourage any other persons (other than its Representatives or RetailMeNot or its representatives)
+in connection with any of the foregoing.
+
+
+
+Notwithstanding the foregoing
+provisions of this Section 20 or any other provision of this Agreement, (i) nothing in this Agreement shall restrict Valassis or
+any other person from taking the actions set forth in clauses (a) – (g) following termination of the Standstill Period, (ii)
+nothing in this Agreement shall prevent Valassis or any person acting on its behalf from making any proposal regarding a business
+combination or other transaction directly to the Board or Chief Executive Officer of RetailMeNot on a confidential basis and from
+discussing such proposal with such persons if such proposal would not reasonably be expected to require RetailMeNot to make a public
+announcement and (iii) the Standstill Period shall terminate, and the restrictions set forth in this Section 20 shall terminate
+and be of no further force and effect, (A) if RetailMeNot enters into a definitive agreement with a party other than Valassis or
+its Affiliates with respect to, or publicly announces that it plans to enter into, a transaction involving 30% or more of RetailMeNot’s
+then-outstanding equity securities or assets (or equity securities of subsidiaries of RetailMeNot holding assets) constituting
+35% or more of the consolidated assets of RetailMeNot and its subsidiaries (whether by merger, consolidation, business combination,
+tender or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise) (an “Alternative Transaction”),
+(B) if RetailMeNot publicly announces or confirms that it is in discussions with one or more parties with respect to an Alternative
+Transaction, or (C) in the event of any announcement or commencement by any person, entity or “group” (within the meaning
+of Section 13(d)(3) of the Exchange Act) of a tender or exchange offer to acquire RetailMeNot’s equity securities which,
+if successful, would result in such person, entity or group owning, when combined with any other equity securities of RetailMeNot
+owned by such person, entity or group, 30% or more of RetailMeNot’s then outstanding equity securities.
+
+
+
+In the event that, during
+the Standstill Period, in connection with the evaluation, discussion, negotiation and/or implementation of a possible Alternative
+Transaction (i) RetailMeNot enters into a confidentiality agreement that does not include “standstill” restrictions
+similar to those included in this Section 20, or (ii) RetailMeNot enters into a confidentiality agreement that includes “standstill”
+restrictions for a term shorter than twelve months or otherwise less restrictive in any material respect than the restrictions
+set forth in this Section 20, then RetailMeNot shall promptly inform Valassis in writing and, in the case of the preceding clause
+(i), the Standstill Period shall terminate or, in the case of the preceding clause (ii), such shorter term and/or other materially
+less restrictive provision(s) shall supersede and be deemed to replace the twelve month restrictive period and/or other more restrictive
+provision(s) set forth in this Section 20, in each case immediately and without any further action of the parties.
+
+
+
+21. Certain
+Acknowledgements of the Disclosing Party. The Disclosing Party acknowledges that the Recipient and/or its Affiliates are engaged
+in businesses similar to or the same as the Disclosing Party, and that neither the execution of this Agreement nor receipt of Confidential
+Information is intended to or shall restrict their ability to compete with the Disclosing Party in the ordinary course of business
+without using Confidential Information in that capacity.
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+The parties have executed
+this Agreement on the last date set forth below.
+
+
+
+
+
+
+
+ | |
+ RETAILMENOT, INC |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ By: |
+ /s/ Jonathan Kaplan |
+ |
+
+ | |
+ Name: |
+ Jonathan Kaplan |
+ |
+
+ | |
+ Title: |
+ General Counsel and Secretary |
+ |
+
+ | |
+ Date: |
+ 1/10/2017 |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ 301 Congress Avenue, Suite 600 |
+ |
+
+ | |
+ Austin, Texas 78701 |
+ |
+
+ | |
+ Attention: General Counsel |
+ |
+
+ | |
+ kaplan@rmn.com |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ VALASSIS COMMUNICATIONS, INC. |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ By: |
+ /s/ Edward Taibi |
+ |
+
+ | |
+ Name: |
+ Edward Taibi |
+ |
+
+ | |
+ Title: |
+ Director |
+ |
+
+ | |
+ Date: |
+ 1/10/2017 |
+ |
+
+ | |
+ Address: |
+ 35 E. 62 Street |
+ |
+
+ | |
+ |
+ NY NY 10065 |
+ |
+
+
+
+
+
+
+
+
+[Signature Page to Confidentiality Agreement]
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
\ No newline at end of file
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@@ -0,0 +1,307 @@
+
+
+
+
+
+
+QuickLinks
+ -- Click here to rapidly navigate through this document
+
+
+
+Exhibit (e)(3)
+
+
+ CONFIDENTIALITY AGREEMENT
TOM BROWN, INC.
+
+November 6,
+2003
+
+STRICTLY CONFIDENTIAL
+
+
+EnCana Oil & Gas (USA) Inc.
+U.S. Bank Tower
+950 17th Street, Suite 2600
+Denver, CO 80202
+
+Attention: Roger Biemans, President
+
+Ladies
+and Gentlemen:
+
+ In
+connection with the consideration of a possible transaction between Tom Brown, Inc. ("TBI") and EnCana Oil & Gas
+(USA) Inc. ("EnCana"), such possible transaction being herein referred to as the "Transaction,"
+TBI and EnCana acknowledge that TBI may make available to EnCana from time to time certain information concerning the structure of the proposed transaction and/or TBI's business, financial condition,
+operations, assets and liabilities, whether prepared by TBI, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, EnCana agrees to comply with its
+obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.
+
+ 1. Evaluation Material; Non-Disclosure Obligation and Use
+Restriction. The term "Evaluation Material" shall mean all information, data and analysis furnished by TBI or its
+Representatives to EnCana or its Representatives relating to TBI or the Transaction, and any analyses, compilations, studies, documents or other material prepared by EnCana or its Representatives
+containing or based in whole or in part upon such information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of EnCana or its
+Representatives or becomes subsequently available to EnCana or its Representatives on a non-confidential basis from a source not known or reasonably suspected by EnCana or its
+Representatives to be bound by a confidentiality agreement or secrecy obligation to TBI, (ii) is or becomes generally available to or known by the public other than as a result of a breach of
+this letter agreement by EnCana or its Representatives or (iii) has already been or is hereafter independently acquired or developed by EnCana without violating any confidentiality agreement or
+secrecy obligation to TBI. "Representatives" shall mean such party's affiliates, directors, officers, employees, agents, lenders or advisers and
+representatives of the foregoing. EnCana recognizes and acknowledges the potential competitive value of the Evaluation Material and the damage that could result from the disclosure thereof to third
+parties. Accordingly, EnCana agrees that the Evaluation Material will be used solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept
+confidential by EnCana and its Representatives; provided, however, that (w) such information may be disclosed by EnCana to its Representatives who need to know such information for the purpose
+of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the confidential nature of the information), (x) it shall not
+constitute a breach of this letter agreement if any disclosure of such information is made with TBI's prior written consent, (y) it shall not constitute a breach of this letter agreement for
+EnCana or its Representatives to disclose such information to the extent that EnCana believes, based on the advice of counsel, that it is legally required to disclose such information in order to
+avoid committing a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national securities quotation system, provided that
+EnCana
+
+Ex. (e)(3)-1
+
+
+
+
+
+
+
+provides
+prompt notice to TBI of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below and (z) it shall not
+constitute a breach of this letter agreement for EnCana or its Representatives to disclose such information to the extent that such disclosure is permitted pursuant to Section 3 below. EnCana
+agrees to be responsible for any breach of this letter agreement by any of its Representatives.
+
+ 2. Non-Disclosure of Discussions. Each Party agrees
+that, without the prior written consent of the other party, such party and its Representatives will not disclose to any other person (other than
+such party's Representative's on a need to know basis) the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a possible
+Transaction or any of the terms, conditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if (i) based
+on the advice of such party's counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any laws, rules or regulations, including any rules or regulations
+of any securities association, stock exchange or national securities quotation system and (ii) the disclosing party provides advance notice to the other party of the proposed disclosure and
+cooperates in good faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure).
+
+
+ 3. Required Disclosure. In the event that EnCana or its
+Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar
+process) to disclose any of the Evaluation Material or any other facts or information, the disclosure of which is prohibited by this letter agreement, EnCana shall (i) provide TBI with prompt
+notice of any such request or requirement so that TBI may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and
+(ii) consult with TBI as to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the receipt of a
+waiver by TBI, EnCana or any of its Representatives should nonetheless, based on the advice of such party's counsel, disclose the Evaluation Material and/or the facts or information covered by
+Section 2, EnCana or its Representative may, without liability hereunder, disclose only that portion of the Evaluation Material and/or such facts or information that such counsel advises is
+legally required to be disclosed; provided that EnCana gives TBI written notice of the Evaluation Material and/or such facts or other information to be disclosed as far in advance of its disclosure as
+is reasonably practicable and exercises its reasonable efforts to preserve the confidentiality of the Evaluation Material and/or such facts or other information, including, without limitation, by
+cooperating with TBI to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.
+
+ 4. Termination of Discussions. If either party decides that it
+does not wish to proceed with discussions or negotiations relating to a Transaction with the other party and the party so deciding promptly informs the other party of that decision, or at any time
+upon the request of TBI for any reason, EnCana will promptly deliver to TBI or, at the option of EnCana, destroy all written (and electronic) Evaluation Material. In the event of such a decision or
+request, all other Evaluation Material prepared by EnCana shall be destroyed, and in no event shall EnCana be obligated to disclose or provide the Evaluation Material prepared by it or its
+Representatives to TBI provided that a single copy of each item returned or destroyed may be retained in the files of EnCana's outside legal counsel for the purpose of resolving any disputes that may
+arise under this letter agreement. If requested, the destruction of Evaluation Material shall be certified in writing by an authorized officer of EnCana. Notwithstanding the termination of any
+discussions or the return or destruction of the Evaluation Material, each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of
+eighteen months from the date hereof.
+
+Ex. (e)(3)-2
+
+
+
+
+
+
+
+ 5. Standstill Agreement. For a period of 18 months from
+the date hereof, EnCana agrees that it and its affiliates shall not, without the prior written request of TBI, directly or indirectly, alone or in concert with others, (a) acquire, offer to
+acquire, or agree to acquire, by purchase, or otherwise, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of
+1934) of more than 1% of any class of voting securities issued by TBI or any material assets of TBI or any securities or material assets of any subsidiary of TBI, (b) propose to enter into any
+merger or business combination involving TBI or any of its subsidiaries, (c) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are used in the proxy rules of
+the United States Securities and Exchange Commission) with respect to the securities of TBI, or advise or seek to influence any person or entity with respect to the voting of, or giving of consents
+with respect to, any securities of TBI or any of its subsidiaries, (d) seek or propose to influence or control (whether though a "group," as such term is used in Rule 13d-5
+of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies or affairs of TBI or any of its subsidiaries, (e) to the extent doing so would require the
+public disclosure of such action by TBI, make any request to waive or amend any provision of this Section 5, (f) disclose any intention, plan or arrangement inconsistent with any of the
+foregoing or (g) encourage any third party to do any of the foregoing; provided, however, that this Section 5 shall terminate with respect to EnCana if a person or entity (other than
+EnCana or an affiliate of EnCana) acquires, enters an agreement to acquire, or publicly proposes to acquire, directly or indirectly, by merger or otherwise, more than 50% of the voting securities of
+TBI (i.e., those securities of TBI that are entitled to participate in the annual election of directors), or otherwise acquires, enters an agreement to acquire, or publicly proposes to acquire, the
+ability to control the management or policies of TBI. As used in this Section 5, the term "securities" shall mean any securities of TBI and any direct or indirect warrants, rights or options to
+acquire securities of TBI.
+
+ 6. Procedure for Communications. It is understood that the
+parties will arrange for appropriate contacts for due diligence purposes. Unless otherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information
+and (iii) discussions or questions regarding procedures, will be submitted or directed to the respective party's Chief Executive Officer, Chief Financial Officer or General Counsel.
+
+
+ 7. Prohibition on Employee Hiring. Until the first anniversary
+of the date hereof, EnCana will not, nor will it permit any of its subsidiaries, directors, officers or employees to, directly or indirectly, solicit or hire the services, as employee, consultant or
+otherwise, of any employee of TBI or its subsidiaries with whom EnCana had contact in connection with its consideration of the Transaction or who became known to EnCana specifically in connection with
+its consideration of the Transaction, except that this provision shall not prohibit the hiring of any such employee (i) who responds to any public advertising for employment without any other
+direct or indirect solicitation or (ii) whose employment by TBI or its subsidiary has been terminated prior to the commencement of discussions with such employee.
+
+ 8. Securities Law. EnCana hereby acknowledges that it is aware,
+and that it has advised or will advise its Representatives who are informed as to the matters that arc the subject of this agreement, that the United States securities laws may prohibit any person who
+has material, nonpublic information concerning the matters that are the subject of this agreement from purchasing or selling securities of a company that may be a party to a transaction of the type
+contemplated by this agreement or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such
+securities.
+
+ 9. Miscellaneous. (a) Unless and until a definitive
+agreement between the parties with respect to any Transaction has been executed and delivered, neither TBI nor EnCana will be under any legal obligation of any kind whatsoever with respect to a
+Transaction by virtue of this letter or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters specifically agreed to in this letter
+agreement. Each party further agrees that neither party shall have
+
+Ex. (e)(3)-3
+
+
+
+
+
+
+
+any
+obligation to authorize or pursue with the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion, to reject any and all
+proposals and to terminate discussions and negotiations with the other at any time.
+
+
+
+ (b) It
+is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall
+any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. The agreements set forth in this letter agreement may
+be modified or waived only by a separate writing between the parties hereto.
+
+ (c) Notwithstanding
+anything herein to the contrary other than paragraph 7 above, all of the obligations of the parties hereunder shall (if not sooner terminated)
+terminate on the second anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach by such party of the terms hereof that exists on
+the date of such termination.
+
+ (d) EnCana
+understands and agrees that neither TBI nor any of its Representatives has made or makes any representation or warranty, express or implied, as to the accuracy or
+completeness of the Evaluation Material or shall have any liability to EnCana or any of its Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom,
+except in each case to the extent expressly provided in any definitive agreement.
+
+
+ (e) Each
+party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly authorized and constitutes a
+valid and binding agreement of such party, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the parties hereto and shall
+inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.
+
+ (f) This
+agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any prior agreements, commitments,
+representations, writings and discussions, whether oral or written, relating to that subject matter. If any provision of this letter agreement is held by a court of competent jurisdiction in a final,
+non-appealable judgment to be invalid, illegal or unenforceable, the remainder of the provisions of this letter shall
+remain in full force and effect and any invalid, illegal or unenforceable provision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to
+that of the invalid, illegal or unenforceable provision.
+
+ (g) The
+validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Colorado without
+regard to conflicts-of-law rules or principles.
+
+ (h) This
+letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument, but all such counterparts taken
+together shall constitute one and the same agreement.
+
+ (i) EnCana
+agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by EnCana or any of its Representatives and that TBI shall be
+entitled to seek equitable relief, including injunction and specific performance, as well as reimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be
+deemed to be the exclusive remedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of litigation concerning this letter
+agreement, if a court of competent jurisdiction determines in a final nonappealable order that a party has breached this letter agreement, then such party shall be liable for and pay the other party's
+reasonable legal fees and expenses incurred in connection with such litigation, including any appeal therefrom or review thereof.
+
+
+Ex. (e)(3)-4
+
+
+
+
+
+
+
+ Please
+confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned.
+
+
+
+
+| |
+ |
+Very truly yours, |
+
+
+
+ |
+
|
+
+TOM BROWN, INC. |
+
+
+
+ |
+
|
+
+By: |
+
|
+
+ |
+
+
+| |
+ |
+ |
+ |
+/s/ JAMES D. LIGHTNER
James D. Lightner
+Chairman, Chief Executive Officer and President |
+
+
+
+
+
+
+
+ACCEPTED AND AGREED as of
+November 25, 2003 |
+ |
+ |
+
+
+
+ENCANA OIL & GAS (USA) INC. |
+
|
+
+ |
+
+
+
+By: |
+
|
+
+ |
+
|
+
+ |
+
+
+| |
+ |
+/s/ ROGER BIEMANS
Roger Biemans
+President |
+ |
+ |
+
+
+
+
+Ex. (e)(3)-5
+
+
+
+
+
+
+
QuickLinks
+CONFIDENTIALITY AGREEMENT TOM BROWN, INC.
+
+
+
+
\ No newline at end of file
diff --git a/raw/1485469_0001193125-19-222469_d760929dex99d3.htm b/raw/1485469_0001193125-19-222469_d760929dex99d3.htm
new file mode 100644
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@@ -0,0 +1,600 @@
+
+Exhibit (d)(3)
+
+
+
+
+
+
Exhibit (d)(3)
+
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY
+AGREEMENT (this “Agreement”) is made and entered into as of this 19th day of September, 2018, by and between Tower International, Inc. (the “Disclosing Party”) and Autokiniton Global Group, Inc. (the
+“Recipient” or “AGG”).
RECITALS
+
A. The Recipient has expressed an interest in having the Disclosing Party provide certain financial, business, legal or other information to
+the Recipient in connection with a potential transaction involving the Disclosing Party, on the one hand, and the Recipient or any controlled affiliate thereof, on the other hand (the “Proposed Transaction”).
+
B. In connection with the provision of such information, the Recipient has agreed to maintain the confidentiality of, and agreed to restrict
+the use of, such information and to certain other restrictions as set forth herein.
AGREEMENT
+
In consideration of the foregoing premises and the mutual covenants and the agreements hereafter set forth, and other good and valuable consideration the
+receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
+
Section 1. Definitions. As used in this Agreement, the following terms have the meanings stated in this Section 1:
+
“Evaluation Material” means (a) all confidential and/or proprietary information, data, agreements, documents, reports, “know-how”, interpretations, plans, studies, forecasts, projections and records (whether in oral or written form, electronically stored or otherwise) containing or otherwise reflecting information
+concerning the Disclosing Party, any of its subsidiaries or affiliates, their respective businesses or assets and other similar information whether received before (but following August 2, 2018), on or after the date of this Agreement,
+(b) all memoranda, notes, analyses, compilations, studies or other documents to the extent the same reflect, were developed based upon or which include any such Evaluation Material (whether in written form, electronically stored or otherwise),
+whether prepared by the Disclosing Party, the Recipient or any other Person, and (c) this Agreement, the terms, provisions and conditions of this Agreement, the existence or purpose of this Agreement or the Proposed Transaction or any of the
+terms, conditions or other facts with respect to the Proposed Transaction, including without limitation, the fact that the parties are discussing a Proposed Transaction or the status thereof (such information described in this clause (c),
+“Transaction Information”); provided, however, that “Evaluation Material” does not include, with respect to clauses (a) and (b) of this paragraph, (i) information that was already in the possession
+of the Recipient or its Representatives prior to receipt hereunder and that was not acquired or obtained from the Disclosing Party or a source that was known by the Recipient or its applicable Representatives to be bound by a contractual, legal or
+fiduciary obligation to the Disclosing Party with respect to such information that prohibited such disclosure, (ii) information that is obtained by the Recipient from a source other than the Disclosing Party unless such source is known by the
+Recipient or its Representatives after reasonable inquiry to be bound by a contractual, legal or fiduciary obligation to the Disclosing Party with respect to such information
+
+
+
+
+
+
+that prohibited such disclosure, (iii) information that is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in
+violation of the provisions of this Agreement or (iv) is independently developed by the Recipient or its Representatives through personnel who have not had access to the Evaluation Material.
+
“Contact Persons” means James Gouin, Jeffrey Kersten, Nanette Dudek, and any other individual designated in writing to the
+Recipient or its Representatives as an additional Contact Person by James Gouin, Jeffrey Kersten or Nanette Dudek.
+
“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other
+entity or organization of any kind, including, without limitation, a governmental authority or agency.
“Representative”
+of a Person means such Person’s officers, directors, employees, partners, members, controlled affiliates, accountants, attorneys, financial advisors, consultants, other agents or representatives, but shall not include financing sources (other
+than, with respect to the Recipient, Merrill Lynch Pierce, Fenner & Smith Incorporated, Goldman Sachs & Co., LLC and each of the lenders listed on Schedule I hereto (the “Lenders”)); provided that,
+with respect to Recipient, “Representative” shall also include KPS Capital Partners, LP (“KPS”) (and its respective Representatives), and Representatives of the Lenders; provided further that upon disclosure of
+Evaluation Material to KPS, KPS shall be deemed to be bound by all of the terms of this Agreement applicable to Recipient and its affiliates and AGG shall be responsible for any and all breaches of the terms of this Agreement applicable to Recipient
+by KPS. Prior to disclosure of any Evaluation Material to KPS, KPS shall execute and deliver to the Disclosing Party a joinder in the form of Exhibit A attached hereto. With respect to KPS, its “Representatives” shall include only
+its officers, directors, accountants, attorneys, consultants and advisors, and, with the prior written consent of the Disclosing Party (not to be unreasonably withheld) certain of the current limited partners of funds affiliated with, or managed by,
+KPS (and their respective officers, directors, accountants, attorneys, consultants and advisors).
“Trade Secret” means
+that portion of the Evaluation Material that consists of (i) all software code and technology, and (ii) such other Evaluation Material reasonably designated as a Trade Secret by the Disclosing Party at the time such Evaluation Material is
+provided by providing such information in a folder identified as containing Trade Secrets in the electronic data room used to facilitate the sharing of Evaluation Material.
+
Section 2. Agreement Not to Disclose or Use Evaluation Material.
+
(a) Non-Disclosure of Evaluation Material. The Recipient shall not and shall direct its
+Representatives not to, directly or indirectly, disclose, reveal, divulge, publish or otherwise make known any of the Evaluation Material to any Person, except as provided in Section 2(c) or Section 7 below. Except as otherwise provided
+herein, the Recipient shall treat the Evaluation Material as confidential at all times.
(b) Limitations on Use of Evaluation
+Material. The Recipient shall, and shall direct its Representatives to, use the Evaluation Material solely for the purpose of evaluating, negotiating or consummating the Proposed Transaction in accordance with the terms of this Agreement.
+
— 2 —
+
+
+
+
+
+
+
(c) Permitted Disclosure. The Recipient may disclose the Evaluation Material to its
+Representatives (including, for the avoidance of doubt, KPS) who (x) need to know such information to enable the Recipient to evaluate, negotiate, consummate or finance the Proposed Transaction, (y) are informed of the confidential nature
+of the Evaluation Material and (z) who agree (or are otherwise obligated) to treat the Evaluation Material in a manner consistent with the terms of this Agreement and are informed that they may use the Evaluation Material only in strict
+accordance with the provisions of this Agreement. AGG shall be fully responsible for any violation of this Agreement by any of its Representatives (including, for the avoidance of doubt, any failure by its Representatives to comply with directions
+required hereunder).
(d) Ownership. The Evaluation Material provided by the Disclosing Party or its Representatives (including to
+the extent reflected or included in derivative works) is owned solely and exclusively by the Disclosing Party, shall remain the exclusive property of the Disclosing Party, and the Recipient shall have no right, title or interest in, to or under any
+of the Evaluation Material or any material developed from the Evaluation Material except for the limited rights to use the Evaluation Materials herein.
+
Section 3. Standstill. Recipient agrees, for the period commencing on the date first written above and ending eighteen
+(18) months from the date hereof that, unless specifically invited in writing by the Disclosing Party, it shall not, and shall cause its affiliates (that have received Evaluation Material) not to, directly or indirectly, acting alone or in
+concert with others (and shall not assist, provide or arrange financing to or for others or otherwise encourage others to):
+
+
+| |
+(a) |
+ enter into any discussions, negotiations, arrangements or understandings with respect to any acquisition or
+sale of, or acquire or sell or agree, offer or propose to acquire or sell (or request permission to do so), by purchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule
+13d-3 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) of (i) the Disclosing Party or any of its
+affiliates, (ii) any material portion of the assets or property of the Disclosing Party or any of its affiliates, (iii) any debt or equity securities of, or direct or indirect rights to acquire any debt or equity securities of, the
+Disclosing Party or any of its affiliates, (iv) any other debt (including without limitation, institutional debt (bank or otherwise), commercial paper, notes, debentures, and bonds of the Disclosing Party or any of its affiliates, (v) any
+rights or options to acquire or sell such ownership (including from a third party), or (vi) any derivatives or other contract rights the value of which in whole or in substantial part derives from or is based upon the trading prices of any
+securities or instruments issued by the Disclosing Party or any of its affiliates; |
+
+
+| |
+(b) |
+ make, or in any way participate in, any “solicitation” of “proxies” to vote (as such terms
+are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to the Exchange Act), or seek to advise or influence in any manner whatsoever any Person with respect to the voting of, any voting securities of the
+Disclosing Party; |
+
— 3 —
+
+
+
+
+
+
+
+
+
+| |
+(c) |
+ form, join or in any way participate in a “group” within the meaning of Section 13(d)(3) of the
+Exchange Act with respect to any voting securities of the Disclosing Party; |
+
+
+| |
+(d) |
+ solicit or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business
+combination, tender or exchange offer, recapitalization, reorganization, purchase of a material portion of the assets or property of or other similar extraordinary transaction involving the Disclosing Party or any of its affiliates;
+ |
+
+
+| |
+(e) |
+ seek or propose to influence or control the management or the policies of the Disclosing Party or any its
+affiliates or to obtain representation on the Board of Directors of the Disclosing Party or any of its affiliates, or solicit, or participate in the solicitation of, any proxies or consents with respect to any securities or instruments of the
+Disclosing Party or any of its affiliates; |
+
+
+| |
+(f) |
+ take any action which might require the Disclosing Party or any of its affiliates to make a public announcement
+regarding the types of matters set forth in (a) through (e) above in this sentence; |
+
+
+| |
+(g) |
+ enter into any discussions, negotiations, arrangement or understandings with any third party (other than
+Representatives in connection with the Proposed Transaction) with respect to any of the foregoing; or |
+
+
+| |
+(h) |
+ make any public announcement with respect to any of the foregoing; |
+
provided, that nothing contained in this Section 3 shall limit the Recipient or any of its affiliates from making any proposal regarding a
+Proposed Transaction directly to the Disclosing Party’s board of directors or a Contact Person on a confidential basis so long as such proposal does not require any party to make a public announcement regarding this letter agreement or such
+proposal.
Section 4. Non-Solicit. The Recipient shall not, and shall cause its
+affiliates that have received Evaluation Material hereunder not to, for a period of eighteen (18) months from the date hereof, solicit or employ any Covered Employee (as defined below) of the Disclosing Party or any of its affiliates without
+the written consent of the Disclosing Party; provided, that, the Recipient shall not be precluded from soliciting or hiring any person who (i) responds to a general solicitation or advertisement not targeted specifically at employees of
+the Disclosing Party or any of its affiliates (whether posted on a public internet site or in a magazine, newspaper or other publication), (ii) is submitted to the Recipient or its affiliates by a bona fide search firm so long as the Recipient or
+its applicable affiliates do not direct such search firm to target such individual or the employees of the Disclosing Party or its affiliates, (iii) has ceased to be employed by the Disclosing Party and its affiliates for at least six
+(6) months at the time he or she enters into discussions for employment with the Recipient or its affiliates if such individual resigned from the Disclosing Party or (iv) has ceased to be employed by the Disclosing Party and its affiliates
+at the time he or she enters into discussions for employment with the Recipient or its affiliates if such individual’s employment was terminated by the Disclosing Party. For the avoidance of doubt, subject to Section 12, nothing in this
+Section 4 shall limit the rights of the Recipient’s affiliates that have not been provided Evaluation Material. “Covered Employee” means those officers and employees listed on Schedule II hereto.
+
— 4 —
+
+
+
+
+
+
+
Section 5. Non-Contact. The Recipient
+shall not and shall cause its affiliates which receive Evaluation Material not to and direct its other Representatives (acting on the Recipient’s or its affiliates’ behalf) not to initiate or maintain contact with any individual or entity
+known by the Recipient or such affiliate or such other Representative to be a customer, supplier, lender, officer, director, manager, member, or employee of the Disclosing Party or any of its affiliates regarding the Proposed Transaction (or any
+similar transaction), except through, or as directed by, the Contact Persons, it being understood that contact and conduct in the ordinary course of business consistent with past practices unrelated to the Proposed Transaction shall not be
+prohibited. Notwithstanding the foregoing, the Recipient and its Representatives shall not be prohibited from conducting customary general market diligence activities through expert networks, so long as (a) the experts are specifically approved
+in advance by the Disclosing Party (such approval is hereby given in respect of Oliver Wyman), and (b) the Disclosing Party is not identified and no Evaluation Material is disclosed in connection with such diligence activities. All
+(i) communications regarding the Proposed Transaction or any similar transaction, (ii) requests for additional information regarding the Proposed Transaction or any similar transaction, (iii) requests for facility tours or management
+meetings, and (iv) discussions or questions regarding procedures in connection with the Proposed Transaction or any similar transaction, shall be submitted or directed exclusively to the Contact Persons or counsel to the Disclosing Party, who
+will, as they deem appropriate, arrange for contacts for due diligence purposes. The Recipient confirms and agrees that it is not acting as a broker for any Person or group (within the meaning of Section 13(d)(3) of the Exchange Act), and that
+the Recipient and its affiliates are considering the Proposed Transaction only for investment by or through AGG.
Section 6. No
+Restrictions on Debt Finance Sources. Without the prior written consent of the Disclosing Party, the Recipient shall not, and the Recipient’s Representatives shall not on the behalf of Recipient or any other Representative of Recipient,
+enter into any contract, arrangement or understanding expressly prohibiting any bank, investment bank or other potential provider of debt financing, including without limitation, the Lenders, from providing or seeking to provide debt financing or
+financial advisory services to any other Person in connection with the Proposed Transaction; provided, however, that any customary “tree” arrangements with financial institutions or financing sources by which a deal team at each
+institution works on providing financial advisory services or obtaining or providing potential financing for Recipient and/or its Representatives for a Proposed Transaction (and is not permitted to work on obtaining or providing financial advisory
+services or potential financing for any other bidder pursuing a potential transaction) but other deal teams at such institution may provide financial advisory services or work on obtaining or providing potential debt financing for other bidders
+pursuing a potential transaction, shall be deemed not to so prohibit bank, investment bank or other potential provider of debt financing. For the avoidance of doubt, references in Sections 3-6 of this
+Agreement to a “Representative” of the Recipient are not intended to restrict such a Representative if not acting on behalf of the Recipient or its affiliates.
+
— 5 —
+
+
+
+
+
+
+
Section 7. Compelled Disclosure. Notwithstanding the provisions of
+Section 2 of this Agreement to the contrary, if the Recipient or any of its Representatives are required or requested to disclose any Evaluation Material pursuant to any applicable law, rule, regulation, subpoena, court order or other
+administrative, regulatory, self-regulatory or legal process (collectively, “Law”), the Recipient shall promptly (unless prohibited by Law and except pursuant to routine regulatory audits, examinations, inquiries or requests, in
+each case, of Recipient or any of its Representatives and not specific to the Proposed Transaction) notify the Disclosing Party in writing of any such requirement so that the Disclosing Party may seek, at its sole expense, an appropriate protective
+order or other appropriate remedy or waive compliance with the provisions of this Agreement. The Recipient shall, and shall direct its Representatives to, reasonably cooperate with the Disclosing Party to obtain such a protective order or other
+remedy. If such order or other remedy is not obtained, or the Disclosing Party waives compliance with the provisions of this Agreement, the Recipient and its Representatives shall disclose only that portion of the Evaluation Material which they are
+advised by counsel that they are legally required to so disclose and shall use commercially reasonable efforts (at the Disclosing Party’s expense) to obtain reasonable assurance that confidential treatment will be accorded the Evaluation
+Material so disclosed.
Section 8. Return or Destruction of Evaluation Material. As promptly as practicable following the
+written request of the Disclosing Party (but in any event within seven (7) calendar days), the Recipient shall, and shall direct its Representatives to, destroy all Evaluation Material in tangible form (whether in written form, electronically
+stored or otherwise) furnished to Recipient and in Recipient’s possession or in the possession of any of its Representatives, and neither the Recipient nor any of its Representatives shall retain any copies thereof, except to the extent
+required to comply with applicable Law or bona fide internal record retention policies or procedures for legal, compliance or regulatory purposes; provided, that nothing contained herein shall require any Person to destroy Evaluation Material
+in electronic form (including any computer systems, back-up and archive tapes or other electronic backup systems) to the extent that such destruction is not commercially practicable and any retained Evaluation
+Material is not accessed by Recipient or its Representatives’ personnel except by any legal, compliance or information technology personnel in the course of their respective duties. Upon the written request of the Disclosing Party, the
+Recipient shall as promptly as practicable confirm in writing such destruction to the Disclosing Party as required by this Section 8 (e-mail being sufficient).
+
Section 9. No Representations and Warranties; No Liability; Definitive Agreement.
+
(a) No Representations and Warranties. The Evaluation Material is being provided to the Recipient “as is” and without any
+representation or warranty of any kind, either express or implied. The Recipient understands and agrees that neither the Disclosing Party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or
+completeness of the Evaluation Material nor will any of them have any liability to Recipient or its Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.
+The Recipient understands and agrees that neither the Disclosing Party nor any of its Representatives is under any duty or obligation to provide the Recipient with access to any information, and nothing herein is intended to impose any such
+obligation on the Disclosing Party or any of its Representatives. The above Section 9(a) is qualified in its entirety by any provision to the contrary in a final and definitive agreement with respect to the Proposed Transaction.
+
— 6 —
+
+
+
+
+
+
+
(b) No Liability. Recipient understands and agrees that the Evaluation Materials
+prepared by the Disclosing Party or its Representatives were prepared for their internal purposes only, and thus may not be suitable for the Recipient’s purposes. The Recipient acknowledges and agrees that the Recipient will make its own
+independent evaluation of the Proposed Transaction and will not be relying on the Disclosing Party or any of its Representatives in connection with the Proposed Transaction and that neither the Disclosing Party nor any of its Representatives is
+acting as the Recipient’s broker or advisor in connection with the Proposed Transaction. The Recipient shall not, and shall cause its Representatives not to, pursue any action, suit or proceeding against the Disclosing Party or any of its
+Representatives arising from or relating to the provision by the Disclosing Party or its Representatives to the Recipient and its Representatives of the Evaluation Material or the information contained therein. The above Section 9(b) is
+qualified in its entirety by any provision to the contrary in a final and definitive agreement with respect to the Proposed Transaction.
+
(c) Definitive Agreement. This Agreement does not constitute a binding agreement or obligation to reach a final and definitive agreement
+with respect to the Proposed Transaction and no contract or agreement providing for any transaction shall be deemed to exist until a final and definitive agreement has been negotiated, fully executed and delivered. Unless and until such a definitive
+agreement with respect to the Proposed Transaction has been negotiated, fully executed and delivered, none of the Disclosing Party, its affiliates, or the Recipient (or its affiliates) shall be under any legal obligation of any kind whatsoever with
+respect to such a transaction, or any other transaction or matter, by virtue of this Agreement, except for the matters specifically set forth herein. The Disclosing Party reserves the right, in its sole and absolute discretion, to reject any and all
+offers and proposals made by the Recipient and to terminate discussions with the Recipient at any time.
Section 10. Specific
+Performance.
(a) Acknowledgment. The parties hereby acknowledge and agree that the provisions of this Agreement are of a
+special and unique nature, the breach of which may not be accurately compensated for in damages by an action at law, and that the breach or threatened breach of the provisions of this Agreement by either party may cause the other party irreparable
+harm and that money damages would not be an adequate remedy for any breach or threatened breach of the provisions of this Agreement by either party.
+
(b) Specific Performance. The parties hereby agree on behalf of themselves and their respective Representatives that the other party and
+their respective Representatives shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual
+damages), to prevent breaches or threatened breaches of this Agreement by the other party or any of its Representatives and to specifically enforce the terms and provisions of this Agreement, this being in addition to any other remedy to which the
+parties or their respective Representatives may be entitled at law or in equity.
Section 11. [Intentionally Omitted]
+
Section 12. Securities Laws. The Recipient hereby acknowledges that it is aware, and that Recipient shall advise its
+Representatives who are informed of the matters that are the subject of this Agreement, that the United States securities laws place certain restrictions on any person who has material, non-public information
+concerning an issuer, with respect to purchasing or selling securities of such issuer or from communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities.
+
+
— 7 —
+
+
+
+
+
+
+
Section 13. Additional Matters.
+
(a) Notwithstanding anything in this Agreement to the contrary, the Disclosing Party acknowledges that the Recipient or the Recipient’s
+Representatives may be engaged in business in which the Recipient or the Recipient’s Representatives may compete with the Disclosing Party. Subject to compliance with the express restrictions herein, this Agreement shall not prevent the
+Recipient or the Recipient’s Representatives from conducting discussions or entering into transactions that are similar to the Proposed Transaction with other third parties or from engaging in business that is the same as, or similar to, the
+business conducted by the Disclosing Party or its affiliates.
(b) For the avoidance of doubt, references herein to “affiliates”
+of the Disclosing Party shall mean controlled affiliates of the Disclosing Party.
(c) The Disclosing Party acknowledges that one or more
+of KPS’s employees, consultants and advisors may serve as board members, officers, employees or advisors of its portfolio companies (including the Recipient) (such individuals, “Dual Role Persons”). No such portfolio company
+(other than Recipient) will be deemed to have received, or to have been made aware of, Evaluation Material solely due to such dual roles of such Dual Role Persons, so long as such Dual Role Persons do not provide any Evaluation Material to the other
+board members, officers, employees or advisors of such company (excluding other Dual Role Persons). KPS is not permitted to share Evaluation Material with its portfolio companies (other than the Recipient) without the further written approval of the
+Disclosing Party.
(d) Without the Recipient’s prior written consent, the Disclosing Party shall not, and shall direct its
+Representatives not to, disclose to any Person, any Transaction Information that would reasonably be expected to identify the Recipient or the identity of any of its affiliates. The Disclosing Party shall be responsible for any and all breaches of
+the terms of this clause by its Representatives (including, for the avoidance of doubt, any failure by its Representatives to comply with directions required hereunder). However, the foregoing shall not restrict any disclosures which the Disclosing
+Party or its Representatives determine in their discretion are required or advisable for legal or regulatory reasons, including disclosures to regulatory or self-regulatory authorities or pursuant to stock exchange rules or other disclosures which
+are customary for listed companies.
Section 14. Miscellaneous.
+
(a) Notices. All notices, requests, demands and other communications to any party or given under this Agreement must be in writing and
+delivered personally, by overnight delivery or courier or by registered mail to the parties at the address specified for such parties on the signature pages hereto (or at such other address as may be specified by a party in writing given at least
+five business days prior thereto).
(b) Counterparts. This Agreement may be executed simultaneously in one or more counterparts, and
+by different parties hereto in separate counterparts, each of which when executed will be deemed an original, but all of which taken together will constitute one and the same instrument.
+
— 8 —
+
+
+
+
+
+
+
(c) Amendment of Agreement. This Agreement may not be amended, modified or waived
+except by an instrument in writing signed on behalf of each of the parties hereto.
(d) Successors and Assigns; Assignability. This
+Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of, the parties hereto. This Agreement may not be assigned by any party without the prior written consent of the other
+party. Any assignment or attempted assignment in contravention of this subsection shall be void ab initio and shall not relieve the assigning party of any obligation under this Agreement.
+
(e) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable
+to contracts executed in and to be performed entirely within that state, without reference to conflicts of laws provisions.
(f)
+Integration. This Agreement contains and constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements and understandings, whether written or oral, of the parties
+hereto with respect to the subject matter hereof. In the event of a conflict between this Agreement and any conflicting terms and conditions connected to a virtual dataroom or other document sharing platform, this Agreement shall control.
+
(g) Severability. If any term or provision of this Agreement shall be determined to be invalid, illegal or incapable of being enforced
+by any rule of law, public policy or other reason, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of
+being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the protections afforded hereby are fulfilled
+to the maximum extent possible.
(h) No Waiver; Remedies. No failure or delay by any party in exercising any right, power or
+privilege under this Agreement shall operate as a waiver of such right, power or privilege. A single or partial exercise of any right, power or privilege shall not preclude any other or further exercise of such right, power or privilege or the
+exercise of any other right, power or privilege. The rights and remedies provided in this Agreement shall be cumulative and not exclusive of any rights or remedies provided by law.
+
(i) No Third-Party Rights. This Agreement is not intended, and shall not be construed, to create any rights in any parties other than
+the Disclosing Party, the Recipient and their respective Representatives and no Person may assert any rights as third-party beneficiary hereunder, except for the rights of the Indemnified Persons under Section 11 hereof. The parties acknowledge
+and agree, for the avoidance of doubt, that the parties hereto intend that the Disclosing Party’s subsidiaries are third-party beneficiaries hereof.
+
(j) Waiver of Jury Trial. EACH OF THE DISCLOSING PARTY AND THE RECIPIENT HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LAWSUIT,
+PROCEEDING OR ACTION TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR TO BE DELIVERED IN CONNECTION WITH THIS AGREEMENT AND AGREES THAT ANY LAWSUIT, PROCEEDING OR ACTION WILL BE
+TRIED BEFORE A COURT AND NOT BEFORE A JURY.
+
— 9 —
+
+
+
+
+
+
+
(k) Submission to Jurisdiction. Each of the Disclosing Party and the Recipient hereby
+(i) agrees that any lawsuit, proceeding or action with respect to this Agreement may be brought only in the courts of the State of New York sitting in the Borough of Manhattan of the City of New York or of the United States of America for the
+Southern District of New York, (ii) accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of such courts, (iii) irrevocably waives any objection, including, without limitation, any
+objection to the laying of venue or based on the grounds of forum non conveniens, which it may now or hereafter have to the bringing of any lawsuit, proceeding or action in those jurisdictions, and (iv) irrevocably consents
+to the service of process of any of the courts referred to above in any lawsuit, proceeding or action by the mailing of copies of the process to the parties hereto as provided in clause (a) above. Service effected as provided in this manner
+will become effective ten calendar days after the mailing of the process.
(l) Term. This Agreement shall terminate and be of no
+further force or effect on the date which is two (2) years from the date hereof; provided, however, that, (i) with respect to Evaluation Material that is a Trade Secret under applicable law, the confidentiality obligations set forth
+herein shall continue to apply so long as such Evaluation Material remains a trade secret under applicable law and (ii) with respect to Evaluation Material that is retained pursuant to Section 8, the confidentiality obligations set forth
+herein shall continue to apply for an additional five (5) years following such termination.
(m) No Strict Construction. This
+Agreement was negotiated fully and equally between the parties and their legal counsel, and any ambiguity in this Agreement shall not be construed against any particular party as a result of the drafting hereof.
+
[Signature page follows]
+
— 10 —
+
+
+
+
+
+
+
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year
+first written above.
+
+
+
+
+
+ |
+
+ |
+ |
+
+ |
+ |
+
+ |
+ |
+
+
+
+| DISCLOSING PARTY: |
+ |
+ |
+ |
+ |
+ |
+ |
+
+ |
+ |
+ |
+
+| Address for Notices: |
+ |
+ |
+ |
+Tower International, Inc. |
+
+| Tower International, Inc. 17672 Laurel Park Drive N |
+ |
+ |
+ |
+ |
+ |
+ |
+
+| Suite 400E |
+ |
+ |
+ |
+ |
+ |
+ |
+
+| Livonia, Michigan 48152 |
+ |
+ |
+ |
+ |
+ |
+ |
+
+| Attn: Nanette Dudek |
+ |
+ |
+ |
+By: |
+ |
+ /s/ James C. Gouin |
+
+ |
+ |
+ |
+ |
+ |
+ |
+Name: James C. Gouin |
+
+ |
+ |
+ |
+ |
+ |
+ |
+Title: Chief Executive Officer |
+
+| RECIPIENT: |
+ |
+ |
+ |
+ |
+ |
+ |
+
+ |
+ |
+ |
+
+| Address for Notices: |
+ |
+ |
+ |
+Autokiniton Global Group, Inc. |
+
+| Autokiniton Global Group, Inc. 17757 Woodland Drive |
+ |
+ |
+ |
+ |
+ |
+ |
+
+| New Boston, MI 48164 |
+ |
+ |
+ |
+ |
+ |
+ |
+
+| Attn: George Thanopoulos |
+ |
+ |
+ |
+By: |
+ |
+ /s/ George Thanopoulos |
+
+ |
+ |
+ |
+ |
+ |
+ |
+Name: George Thanopoulos |
+
+ |
+ |
+ |
+ |
+ |
+ |
+Title: CEO |
+
+
+
+
+
+
+
Schedule I
+
Lenders
+
+
+| |
+• |
+ |
+ Barclays Bank PLC |
+
+
+| |
+• |
+ |
+ RBC Capital Markets |
+
+
+
+
+| |
+• |
+ |
+ Deutsche Bank AG |
+
+
+
+
+
+
Schedule II
+
Covered Employees
Any executive officer
+including:
CEO
President
+
Exec. VP and CFO
Chief Accounting Officer
+
Sr. VP Global Human Resources
Exec. VP and COO
+
VP Legal Affairs and Compliance and Corporate Secretary
Other
+Leadership and Reports:
VP North America Finance
+
Controller North America
VP Sales
+
VP HR
VP Program Management
+
VP Technology
VP Quality
+
VP Launch
VP Global Purchasing
+
VP Operations
VP Tax and Treasury
+
General Auditor
Director investor and external relations
+
Director business development
VP CIO
+
Executive director financial planning and analysis
Director
+internal controls
Executive director MBO
VP GLOBAL Director
+lean six sigma
Director HR
Sr VP EU
+
VP HR Europe
+
+
+
+
+
+
Exhibit A
+
Form of Joinder
+
September 19, 2018
Tower International,
+Inc. (the “Disclosing Party”)
Dear Madames/Sirs:
+
KPS Capital Partners, LP (“KPS”) hereby agrees to comply with the terms and conditions set forth in that certain confidentiality
+agreement between the Disclosing Party and Autokiniton Global Group, Inc. (the “Recipient”) (the “Underlying Confidentiality Agreement”) executed dated September 19, 2018, a copy of which is attached to this
+letter, as if KPS were the Recipient thereunder; provided, however, that, notwithstanding any provision of this letter or the Underyling Confidentiality Agreement to the contrary, KPS’s Representatives shall include only its officers,
+directors, accountants, attorneys, consultants and advisors, and, with the prior written consent of the Disclosing Party (not to be unreasonably withheld) certain of the current limited partners of funds affiliated with, or managed by, KPS (and
+their respective officers, directors, accountants, attorneys, consultants and advisors). KPS hereby agrees to be fully responsible for any violation of this letter or the Underyling Confidentiality Agreement by any of its Representatives (including,
+for the avoidance of doubt, any failure by its Representatives to comply with directions required thereunder). KPS hereby agrees that this letter is made for the benefit of the Disclosing Party and its subsidiaries.
+
[Signature page follows]
+
+
+
+
+
+
+
+
+
+
+
+ |
+
+ |
+ |
+
+
+
+| KPS Capital Partners, LP |
+
+| by: KPS Capital Partners, LLC, |
+
+| its General Partner |
+
+ |
+ |
+
+| By: |
+ |
+ /s/ Ryan Baker |
+
+ |
+ |
+Name: Ryan Baker |
+
+ |
+ |
+Title: Principal |
+
+
+
+
+
+
Exhibit (d)(2)
+
Execution Version
+
NON-DISCLOSURE AGREEMENT
+
This Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of February 14, 2019, by and between The KeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the “Company”), and Jacobs Engineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, “Recipient”). In consideration of the mutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do hereby agree as follows:
+
1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall collectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or obtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any aspect of the business or affairs of the Company or its “affiliates” (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)). Confidential Information also includes any notes, analyses, compilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain, reflect or are based, in whole or in part, on the Confidential Information.
+
Notwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient’s possession or known to Recipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or material, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.
+
2. Restrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:
+
2.1 Non-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or entity, (i) any information about a potential transaction between Recipient and the Company (the “Transaction”) or the fact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions between the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2 below) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such disclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors, officers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for the purpose of obtaining information for use in evaluating the Transaction, without the Company’s prior written consent. Recipient further agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only through Guggenheim Securities, LLC (“Guggenheim”). Company agrees that, without Recipient’s prior written consent, it and its Representatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement exists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place concerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the valuation, or indicative offers, or proposals.
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2.2 Request for Production of Confidential Information. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the Confidential Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior to such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, Recipient is nonetheless,
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legally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only that portion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed, provided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.
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2.3 Ownership. The Confidential Information is owned solely and exclusively by the Company and shall remain the exclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed therefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.
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2.4 Use. Recipient agrees not to use any Confidential Information of the Company for any purpose except to evaluate and engage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to anyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information in order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Company’s Confidential Information and which are provided to the Recipient hereunder.
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Notwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its parent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors, officers employees of the Recipient’s wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without limitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, “Representatives”) who are party to an associated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of this Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information to any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential Information is received in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential Information for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach by its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such Representative shall have entered into its own definitive confidentiality agreement with the Company.
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3. No Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly (and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise contract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the Company or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar document) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not apply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social media sites, or use of employment agencies, not specifically directed at the Company’s employees, (ii) who has been terminated by the Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is currently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was solicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the Company’s prior written consent.
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4. Return of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including notes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files. Notwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored Confidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its Representatives’ ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by this Agreement.
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5. Anti-Clubbing.
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5.1 The Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates. Except with the prior written consent of the Company, the Recipient agrees that (i) it will
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not act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding the Transaction, other than the Company and its representatives, and the Recipient’s Representatives (to the extent permitted hereunder).
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5.2 Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the Recipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or otherwise).
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6. Standstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will not, for a period of one (1) year after the date of this Agreement, directly or indirectly:
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6.1 make any statement or proposal to the board of directors of any of the Company, any of the Company’s Representatives or any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v) any request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this Section 6;
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6.2 instigate, encourage or assist any third party (including forming a “group” within the meaning of Section 13(d)(3) of the Exchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the actions set forth in clause 6.1 above;
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6.3 acquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or indirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company or any of its subsidiaries, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or assets, except that Recipient may beneficially own up to 4.9% of the Company’s outstanding loans, debt securities and equity securities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the Company;
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6.4 acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights, warrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for sale by the Company or any of its affiliates;
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6.5 arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the Company or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company, except for such assets as are then being offered for sale by the Company or any of its affiliates; or
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6.6 take any action which would reasonably be expected to require the Company or any of its affiliates to make a public announcement regarding any of the actions set forth in clauses 6.1-6.3 above.
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6.7 The foregoing restrictions shall not apply to any of the Recipient’s Representatives effecting or recommending transactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner and (b) not at the direction or request of the Recipient.
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6.8 Notwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate and be of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving all or a controlling portion of the Company’s equity securities or all or substantially all of the Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise).
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7. No Representations or Warranties. The Confidential Information is being provided to Recipient “as is” and without any representation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event shall the Company or its affiliates or any of their respective directors, officers, employees, agents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of any use of the Confidential Information.
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8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors, officers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) caused by or arising out of any breach of this Agreement by Recipient or any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments arising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney’s fees and other costs and expenses.
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9. Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform under this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money damages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event of a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient. Accordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or breach thereof.
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10. No Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark, intellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.
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11. Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any transaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a final definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the Company shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until a final definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made by Recipient and to terminate discussions and negotiations with Recipient at any time. Recipient further understands that (i) the Company shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be changed at any time in the Company’s sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not have any claims whatsoever against the Company or any of its agents or representatives (including, without limitation, Guggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a definitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with Recipient, against any third party with whom a transaction is entered into.
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12. Trading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents and Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such Transaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
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13. Export. Recipient and its employees shall abide by all export laws, rules and regulations of the United States Government, or any agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the International Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating Manual (DOD 5220.22-M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this Agreement.
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14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written consent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any action or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
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15. Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.
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+ |
+ The KeyW Holding Corporation
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+ Jacobs Engineering Group Inc.
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+ By:
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+ /s/ Philip Luci, Jr.
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+ By:
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+ /s/ Jeff Goldfarb
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+ Title:
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+ EVP & General Counsel
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+ Title:
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+ SVP, Corporate Development
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Appendix B
+
CONFIDENTIALITY TERMS AND CONDITIONS
+
1. Definition of Confidential Information. “Confidential Information” shall mean any information,
+including but not limited to data, techniques, protocols or results, or business, financial, commercial or technical information, disclosed by one Party (each a “Discloser” as applicable) to the other Party (each a “Recipient” as
+applicable) in connection with the terms of that certain Exclusive License Agreement dated December , 2016 (the “License Agreement”) and identified as confidential at the time of disclosure. Capitalized terms used in this Appendix that are
+not otherwise defined herein have the meanings ascribed in the License Agreement to which this Appendix is attached and made a part thereof.
+
2. Exclusions. “Confidential Information” under this Agreement shall not include any information that
+(i) is or becomes publicly available through no wrongful act of Recipient; (ii) was known by Recipient prior to disclosure by Discloser, as evidenced by tangible records; (iii) becomes known to Recipient after disclosure from a third
+party having an apparent bona fide right to disclose it without any confidentiality obligation; (iv) is independently developed or discovered by Recipient without use of Discloser’s Confidential Information, as evidenced by tangible
+records; or (v) is disclosed to another party by Discloser without restriction on further disclosure. The obligations of confidentiality and non-use set forth in this Agreement shall not apply with
+respect to any information that Recipient is required to disclose or produce pursuant to applicable law, court order or other valid legal process provided that Recipient promptly notifies Discloser prior to such required disclosure, discloses such
+information only to the extent so required and cooperates reasonably with Discloser’s efforts to contest or limit the scope of such disclosure.
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3. Permitted Purpose. Recipient shall have the right to, and agrees that it will, use Discloser’s
+Confidential Information solely for the performance of its obligations and exercise of its rights under the License Agreement (the “Purpose”), except as may be otherwise specified in a separate definitive written agreement negotiated and
+executed between the parties.
4. Restrictions. For the term of the License Agreement and a period of [***]
+thereafter (and indefinitely with respect to any individually identifiable health information disclosed by BIDMC to Licensee, if any), each Recipient agrees that: (i) it will not use such Confidential Information for any purpose other than as
+specified herein; and (ii) it will use reasonable efforts (but no less than the efforts used to protect its own confidential and/or proprietary information of a similar nature) not to disclose such Confidential Information to any other person
+or entity except as expressly permitted hereunder or the License Agreement. Recipient may, however, disclose Discloser’s Confidential Information only on a
+need-to-know basis to its and its Affiliates employees, staff members and agents (“Receiving Individuals”) who are directly participating in the Purpose and
+who are informed of the confidential nature of such information, provided Recipient shall be responsible for compliance by Receiving Individuals with the terms of this Agreement and any breach thereof Each party further agrees not to use the name of
+the other party or any of its Affiliates or any of their respective trustees, directors, officers, staff members,
+
19
+
[***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL
+AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
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+employees, students or agents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior written approval of the
+party or individual whose name is to be used, in the case of BIDMC such approval to be given by the Public Affairs Department. This Section 4 shall survive termination or expiration of this Agreement.
+
5. Right to Disclose. Discloser represents that to the best of its knowledge it has the right to disclose to each
+Recipient all of Discloser’s Confidential Information that will be disclosed hereunder.
6. Ownership.
+All Confidential Information disclosed pursuant to this Agreement, including without limitation all written and tangible forms thereof, shall be and remain the property of the Discloser. Upon termination of this Agreement, if requested by Discloser,
+Recipient shall return or destroy at Discloser’s discretion all of Discloser’s Confidential Information, provided that Recipient shall be entitled to keep one copy of such Confidential Information in a secure location solely for the
+purpose of determining Recipient’s legal obligations hereunder.
7. No License. Nothing in this
+Agreement shall be construed as granting or conferring, expressly or impliedly, any rights by license or otherwise, under any patent, copyright, or other intellectual property rights owned or controlled by Discloser relating to Confidential
+Information, except as specifically set forth in the License Agreement.
8. Remedies. Each party acknowledges
+that any breach of this Agreement by it may cause irreparable harm to the other party and that each party is entitled to seek injunctive relief and any other remedy available at law or in equity.
+
9. Export Restrictions. The Confidential Information is subject to the export and customs laws and regulations of
+the United States and any other applicable country and neither party will export, re-export or transship, directly or indirectly, such information to any country without first obtaining proper governmental
+approval, as necessary. Licensee will not disclose any export controlled information to BIDMC without the express prior written consent of BIDMC Technology Ventures Office. Licensee will indemnify BIDMC for any and all claims, actions, damages or
+liabilities of any kind related to Company’s failure to comply with this section.
10. General. These
+Confidentiality Terms and Conditions, along with the License Agreement, contain the entire understanding of the parties with respect to the subject matter hereof, and supersede any prior oral or written understandings between the parties relating to
+confidential treatment of information. Sections 1, 2, 4, 7, 10 and 11 of these Confidentiality Terms and Conditions shall survive any expiration or termination of the License Agreement.
+
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[***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL
+AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
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+
Exhibit (d)(3)
EXECUTION COPY
AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT
+
This Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software
+Group, Inc., a Delaware corporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New Mountain Capital, LLC, “RHI”) (each a
+“Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.
1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party referred to as the
+“Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement,
+and to take or abstain from taking certain other actions as hereinafter set forth.
2. Definitions.
+(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or
+after November 8, 2011 to the Recipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations,
+assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole or in part, the
+information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this
+Agreement, (ii) was within the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of the Provider, provided that the source of such information was not
+known by the Recipient or its Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes
+available to the Recipient or its Representatives on a non-confidential basis from a source other than the Provider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to
+be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iv) was or is independently developed by the Recipient or the
+Recipient’s Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.
(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial advisors, agents, consultants, advisors,
+accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the directors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers,
+financial advisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI. Notwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to
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+discuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with a Possible Transaction or to
+discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.
(c)
+The term “Person” includes the media and any corporation, partnership, group, individual or other entity.
3.
+Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a Possible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in
+any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible Transaction. The Recipient agrees to be
+responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of Recipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This
+Agreement does not grant the Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of doubt, RHI agrees that it shall not disclose any of the Evaluation
+Material provided by or on behalf of JDA to any of its affiliates that are not included in the definition of RHI.
4.
+Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party and its Representatives will not disclose to any other Person (i) that Evaluation Material
+has been exchanged between the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status
+thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable description. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction
+of RHI) of RHI will, without the prior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other person regarding a Possible Transaction (including, without
+limitation, financing thereof). RHI represents and warrants that, except as disclosed to JDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions referred
+to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent acting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter
+into any exclusive arrangement with respect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or other understanding, whether written or oral, with any potential
+debt financing source which does, or could be reasonably expected to, legally or contractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing source to any
+other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.
5. Legally Required
+Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)
+to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited
+
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+under Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or requirement. If, in the absence of a protective order
+or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its Representatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is prohibited under
+Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled
+or required by law to disclose; provided that the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the confidentiality of such Evaluation Material or any of
+such facts, including, without limitation, by reasonably cooperating with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the
+Person receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide such notice, in connection with a routine blanket audit or proceeding (including in response to oral
+questions or requests for information or documents) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such Representative where neither the Provider nor the Possible
+Transaction is the target of such proceeding or audit. In either case, the Recipient and its Representatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.
+6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction,
+initiate or maintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior written consent of the other Party. If discussions between the Parties regarding a
+Possible Transaction are terminated, the Parties and their Representatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as applicable, in writing, all communications
+regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or management meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under
+this Agreement, will be submitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220-5040; jqian@newmountaincapital.com), or Paul Ilse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case
+of JDA, to David Lubeck (415- 315-8612; david.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their designees.
+7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality
+requirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its Representatives are granted access in connection with this Agreement or a Possible
+Transaction, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional confidentiality conditions, it
+being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the Evaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement
+executed by the Parties hereto in traditional written format.
+
3
+
+
+
+
+
+ 8. Termination of Discussions. If either Party decides that it does not wish to
+proceed with a Possible Transaction, it will promptly inform the other Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its Representatives to, within
+five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including
+electronic copies) shall be retained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement shall be extended by a like number of days for each day that the Recipient
+or any of its Representatives is in non-compliance of this Section 8. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the Evaluation Material, the
+Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such Evaluation Material.
9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of any of the officers of the Provider with whom it has
+had contact in connection with its evaluation of a Possible Transaction, so long as they are employed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular
+individual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for employment on behalf of the Recipient (and soliciting any person identified by any such
+recruiting firm or organization) so long as the Recipient does not identify the individuals to be solicited by such recruiting firm or organization.
10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public announcement is made of the entry by JDA into a
+binding definitive agreement with any third party to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting
+securities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third party of a tender or exchange offer for at least a majority of the outstanding voting
+securities of JDA (the “Standstill Period”), unless specifically invited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended
+(the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or Representatives (acting on its behalf) will in any manner, directly or indirectly:
+(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way
+assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:
+
+
+| |
+(i) |
+any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its subsidiaries, |
+
+
+
+| |
+(ii) |
+any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries, |
+
4
+
+
+
+
+
+
+
+
+| |
+(iii) |
+any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of its subsidiaries, or
+ |
+
+
+| |
+(iv) |
+any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting
+securities of JDA; |
(b) form, join or in any way participate in a “group” (as defined
+under the 1934 Act with respect to the voting securities of JDA;
(c) make any public announcement with respect
+to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving JDA or its voting securities or assets;
+(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of
+Directors or policies of JDA;
(e) take any action which might force JDA to make a public announcement
+regarding any of the types of matters set forth in (a) above;
(f) enter into any discussions or
+arrangements with any third party with respect to any of the foregoing; or
(g) make any public announcement
+inconsistent with the agreements contained in this Section,
RHI also agrees during the Standstill Period not to request
+(either directly or through its affiliates or Representatives) that JDA (or its directors, officers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would
+require JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned actions with respect to any Person other than JDA or any of its subsidiaries notwithstanding
+the fact that, at the time such action is taken, JDA (or a subsidiary thereof) may be a subsidiary of such Person.
11.
+Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or
+governmental investigations, each Party understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Parties that the sharing of such material is
+not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided
+by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.
+
+
5
+
+
+
+
+
+ 12. Compliance with Securities Laws. The Recipient and its Representatives agree not
+to use any Evaluation Material of the Provider in violation of applicable securities laws.
13. Not a Transaction
+Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,
+and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Parties shall have entered into a final definitive agreement for a
+Possible Transaction. Each Party also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect
+to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.
14. No
+Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness
+of the Evaluation Material furnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to the Recipient or
+its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a
+Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information
+to any Person.
15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of
+either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege
+hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.
+16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this
+Agreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof
+without the requirement of posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to
+the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-appealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the
+reasonable costs (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.
17. Governing
+Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be governed by and construed in
+
6
+
+
+
+
+
+
+accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting the generality of the foregoing, this Agreement
+may be enforced by any Person with which the Recipient enters into a transaction. Each Party irrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for the
+purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or proceeding relating thereto except in any such court, and further agree that service of process, summons,
+notice or document by U.S. registered mail to its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this Agreement. Each Party hereby also irrevocably and
+unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any
+such court that such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
18.
+Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions
+contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then
+the Parties intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified
+form for all purposes of this Agreement.
19. Construction. The Parties have participated jointly in the negotiation
+and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring either
+Party by virtue of the authorship at any of the provisions of this Agreement.
20. Term. This Agreement shall terminate
+two years after the date of this Agreement.
21. Entire Agreement. This Agreement contains the entire agreement between
+the Parties regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual Nondisclosure Agreement, dated
+November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).
22. Counterparts. This
+Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be deemed to constitute a single instrument.
+
7
+
+
+
+
+
+ IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed
+by its duly authorized representative as of the date written below.
+
+
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+
+| REDPRAIRIE HOLDING, INC. |
+ |
+ |
+ |
+JDA SOFTWARE GROUP, INC. |
+
+ |
+ |
+ |
+ |
+ |
+
+| By: |
+ |
+
+
+
+
+ |
+ |
+ |
+ |
+By: |
+ |
+
+
+
+
+ |
+
+ |
+ |
+Name: |
+ |
+Laura L Fese |
+ |
+ |
+ |
+ |
+ |
+Name: |
+ |
+David Kennedy |
+
+ |
+ |
+Title: |
+ |
+Chief Legal Officer |
+ |
+ |
+ |
+ |
+ |
+Title: |
+ |
+Executive Vice President and Chief Legal Officer |
+
+| Date: |
+ |
+ 9/4/12 |
+ |
+ |
+ |
+Date: |
+ |
+ |
+
+| Address: 20700 Swenson Drive, Waukesha,WI 53186 |
+ |
+ |
+ |
+Address: 14400 N. 87th Street, Scottsdale, AZ 85260-3649 |
+
+ |
+ |
+ |
+ |
+ |
+
+| NEW MOUNTAIN CAPITAL LLC |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+ |
+ |
+ |
+ |
+ |
+ |
+
+| By: |
+ |
+
+
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+ |
+ |
+Name: |
+ |
+Jack Qian |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+ |
+ |
+Title: |
+ |
+Vice President |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+| Date: |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+| Address: 787 Seventh Avenue,
+49th Floor, New York, NY 10019 |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
8
+
+
\ No newline at end of file
diff --git a/raw/1574111_0001193125-14-440569_d826999dex99d5.htm b/raw/1574111_0001193125-14-440569_d826999dex99d5.htm
new file mode 100644
index 0000000000000000000000000000000000000000..d508b09a2a5d7d8a5e7ecb561f7b13a420f8a54e
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@@ -0,0 +1,176 @@
+
+EX-99.D.5
+
+
+
+ EXHIBIT (d)(5)
+MUTUAL NON-DISCLOSURE AGREEMENT
+This Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”),
+is by and between BioMarin Pharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a Netherlands corporation with offices at J.H. Oortweg 21, 2333 CH,
+Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may be referred to herein as a “Party” or collectively as the “Parties.”
+WHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a
+potential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”, and in the capacity of receiving information, each party is referred to as the
+“Receiving Party”.)
NOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree
+as follows:
1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or
+more of their Affiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the development and commercialization of Prosensa’s products including, but not limited to,
+Drisapersen (the “Purpose”), and solely for that Purpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which it desires be treated as
+confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by, under the control of, or in common control with such Party.
+2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical
+information previously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or one or more of its Affiliates in written, oral or electronic form. Confidential Information
+will be deemed to include, without limitation:
(a) any technology, inventions, products, chemical compounds and compositions,
+formulations, molecules, precursors, methods, concepts, ideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific preclinical or clinical data, observations, records,
+databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts, product pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans, forecasts,
+proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public information or other trade secrets, whether scientific, clinical or financial in nature, relating directly or
+indirectly to the business of the Disclosing Party; and
(b) any memorandum, analysis, compilation, summary, interpretation, study,
+report or other document, record or material that is or has been prepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in Section 2(a)
+above;
(c) the existence and terms of this Agreement, and the fact that information of the type referred to in
+Section 2(a) above has been made available to the Receiving Party; and
(d) the fact that discussions or negotiations
+are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms of any such transaction.
3.
+Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations to protect Confidential Information disclosed under this Agreement shall survive
+termination of this Agreement and will be binding upon Receiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.
+
+
+
+
+ 4. Treatment of Confidential Information.
+(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving
+Party shall not use the Confidential Information for any other purpose, including but not limited to using it in connection with the development or commercialization of any process or product, or using it in connection with any submission to any
+governmental agency, including any patent office or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate Confidential Information only to those employees, independent
+contractors, advisors, or Affiliates, on a “need to know” basis in order for Receiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates shall be advised
+of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates shall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party
+agrees to notify Disclosing Party immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of Disclosing Party that may come to Receiving Party’s attention.
+(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable
+precautions to protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least the same degree of care as it employs to protect its own Confidential Information of
+like nature (but in any event no less than a reasonable degree of care), acting in a manner consistent with its obligations under this Agreement.
+(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential
+Information disclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the Confidential Information from Disclosing Party; (ii) is independently developed by
+Receiving Party without the use of the Confidential Information as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully received by the Receiving Party on a
+non-confidential basis from a third party without breach of a duty of confidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written publication, and shall not
+mean information the substance of which must be pieced together from a number of different publications or other sources.
(d)
+Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential Information that is required by applicable law or regulation or by a valid order of a court or other
+governmental body having jurisdiction, provided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such requirement as soon as reasonably possible, and cooperates with
+Disclosing Party in seeking an appropriate protective order, confidential treatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.
+(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each
+Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a binding agreement to enter into any definitive agreement. Receiving Party understands that nothing
+herein requires the disclosure of any Confidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.
+(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either
+Party not to enter into the business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn over to Disclosing Party, or destroy, all Confidential Information of
+Disclosing Party and all documents, media, and other tangible materials containing any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential Information, upon the destruction thereof,
+Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing Party’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from
+its computer system’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this Agreement.
+
+
+
+
+ (g) No Transfer or License. Nothing in this Agreement is intended to grant or
+transfer any right to Receiving Party under any patent, copyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or to the Confidential Information except as
+expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing Party shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including, without
+limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.
(h) Both
+parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access to material non-public information concerning this other party. Each Party acknowledges, that it and its
+representatives are aware, that the United States or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an issuer of securities, from purchasing or selling securities of
+such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
+5. Miscellaneous.
(a)
+Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring any right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or
+trademark. Receiving Party will make no public announcement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without the prior written consent of Disclosing Party, which may
+be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to comply with applicable law or regulations.
+(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior
+written consent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.
+(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be
+unaffected and shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.
+(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any
+provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
+(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal
+delivery or reputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent to the addresses set forth at the beginning of this Agreement, in this section, or such
+other addresses as either Party may specify in writing.
(f) Governing Law; Jurisdiction. This Agreement is made under and
+shall be construed according to the laws of the State of California without regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this Agreement may be brought in the
+state courts and the Federal courts located in the Northern District of California, and the parties hereby consent to the personal jurisdiction and exclusive venue of these courts.
+(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission
+of Disclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party will entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable
+remedies available to it. Notwithstanding clause (f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.
+(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this
+Agreement.
+
+
+
+
+ (i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and
+exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between the Parties with respect to the matters addressed herein. No
+modification of or amendment to this Agreement will be effective unless in writing and signed by all Parties.
(j)
+Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
+IN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement
+to be executed as of the Effective Date.
+
+
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+
+| PROSENSA HOLDING N.V. |
+ |
+ |
+ |
+BIOMARIN PHARMACEUTICAL INC. |
+ |
+ |
+
+ |
+ |
+ |
+ |
+ |
+
+| By: |
+ |
+/s/ Luc Dochez |
+ |
+ |
+ |
+By: |
+ |
+ /s/ Joshua Grass |
+
+ |
+ |
+ |
+ |
+ |
+
+| Name: |
+ |
+Luc Dochez |
+ |
+ |
+ |
+Name: |
+ |
+Joshua Grass |
+
+ |
+ |
+ |
+ |
+ |
+
+| Title: |
+ |
+Chief Business Officer |
+ |
+ |
+ |
+Title: |
+ |
+SVP, Business and Corporate Development |
+
+
\ No newline at end of file
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new file mode 100644
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+++ b/raw/1588052992CCTV%20Non%20Disclosure%20Agreement.pdf
@@ -0,0 +1,3 @@
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diff --git a/raw/1592288_0001193125-17-306543_d469659dex99e2.htm b/raw/1592288_0001193125-17-306543_d469659dex99e2.htm
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index 0000000000000000000000000000000000000000..b75d58980ded51a19ad7bcc0f53a6215d71175a8
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+++ b/raw/1592288_0001193125-17-306543_d469659dex99e2.htm
@@ -0,0 +1,315 @@
+
+EX-(e)(2)
+
+
+
+ Exhibit (e)(2)
+September 19, 2017
Ultragenyx Pharmaceutical Inc.
+60 Leveroni Court
Novato, California 94949
+Attention: Karah Parschauer, General Counsel
Ladies and
+Gentlemen:
In connection with your consideration of a possible negotiated business transaction involving Dimension Therapeutics, Inc. (the
+“Company”) and you (the “Possible Transaction”), and in order to evaluate, consider, negotiate and/or implement the Possible Transaction, you have requested information concerning the Company that is confidential
+and proprietary. As a condition to being furnished such confidential and proprietary information, you agree to treat any such information, whether written or oral, concerning the Company or any of its subsidiaries, Affiliates (as such term is
+defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended) or divisions (whether prepared by the Company, its advisors or otherwise) that is furnished on or after the date hereof to you by or on
+behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term
+“Evaluation Material” includes, without limitation, all notes, analyses, compilations, spreadsheets, data, reports, studies, interpretations or other documents furnished by or on behalf of the Company to you or your Representatives
+(as defined below) or prepared by you or your Representatives, to the extent such materials reflect or are based upon the Evaluation Material. The term “Evaluation Material” does not include information that (a) is or becomes
+available to you on a nonconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary
+obligation to, the Company that prohibits such disclosure, (b) is or becomes available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (c) you can demonstrate is in
+your possession or the possession of your Representatives prior to receipt from the Company or its Representatives pursuant to this letter agreement, or (d) has been or is independently developed by you or your Representatives without the use
+of the Evaluation Material or in violation of the terms of this letter agreement. For purposes of this letter agreement the term “Representatives” shall include any person, its Affiliates and such person’s and its
+Affiliates’ respective directors, officers, employees, agents, attorneys, accountants, financial advisors and other professional representatives or advisors.
+
+
+| |
+1. |
+ Non-Disclosure and Use of Evaluation Material. You hereby
+agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating, considering,negotiating and/or implementing the Possible Transaction; provided, however, that the Evaluation Material may be
+disclosed (i) to any of your Representatives who need to know such information solely for the purpose of evaluating, considering, |
+
+
+
+
+
+
+
+| |
+
+negotiating and/or implementing a Possible Transaction, (ii) pursuant to an External Demand in accordance with paragraph 4 of this letter agreement and (iii) as the Company may
+otherwise consent in writing. All such Representatives shall (A) be informed by you of the confidential nature of the Evaluation Material, (B) agree to treat the Evaluation Material in accordance with this letter agreement, and (C) be
+advised of the terms of this letter agreement and directed to comply with the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter
+agreement by any of your Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such breach).
+ |
+
+
+| |
+2. |
+Securities Laws. You hereby acknowledge that you and your Representatives are aware, and will advise your Representatives, that the Evaluation Material may contain material,
+non-public information about the Company and that United States securities laws prohibit any person who has material, non-public information about a company from
+purchasing or selling any securities of the Company while in possession of such information. |
+
+
+| |
+3. |
+Transaction Information. You will not, and will direct your Representatives not to, disclose to any person (except (i) to your Representatives who need to know such information for the purpose of
+evaluating, considering, negotiating and/or implementing a Possible Transaction and (ii) as the Company may otherwise consent in writing) either the fact that discussions or negotiations are taking place concerning the Possible Transaction or
+any of the terms, conditions or other facts with respect to the Possible Transaction, including the status thereof or that Evaluation Material has been made available to you (such information, “Transaction Information”);
+provided, however, that disclosure of Transaction Information pursuant to an External Demand shall be governed by paragraph 4 of this letter agreement; Without limiting the generality of the foregoing, you further agree that you will
+not share the Evaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead to an agreement, arrangement or understanding, with any other person, including other
+potential bidders and equity or debt financing sources (other than your Representatives as permitted above) regarding a Possible Transaction involving the Company without the prior written consent of the Company and only upon such person executing a
+confidentiality agreement in favor of the Company with terms and conditions substantially consistent with this letter agreement. |
+
+
+| |
+4. |
+ Required Disclosure. Notwithstanding anything to the contrary provided in this letter agreement, in
+the event you or any of your Representatives receive a request or are required by any law, rule, order, decree or regulation (including, without limitation, applicable securities or antitrust laws and applicable stock exchange rules) or any
+regulatory authority or legal, administrative or judicial process (including, without limitation, or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a
+regulatory examiner) (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Evaluation Material or the Transaction Information, you or your Representatives, as the case may be, agree, to
+the extent permissible and reasonably |
+
2
+
+
+
+
+
+
+
+
+| |
+
+practicable, to (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or Permitted Disclosure and (b) assist the Company, at the
+Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or that the Company waives
+compliance with the provisions hereof, (i) you or your Representatives, as the case may be, may disclose only that portion of the Evaluation Material or Transaction Information which you or your Representatives are advised by counsel is
+required to be disclosed and to only those persons to whom you or your Representatives are advised by counsel are required to receive such information, and you or your Representatives shall exercise reasonable efforts to obtain assurance that
+confidential treatment will be accorded such Evaluation Material or Transaction Information, and (ii) you or your Representatives shall not be liable for such disclosure. |
+
+
+
+| |
+5. |
+Communications and Requests. You agree that unless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional
+information regarding the Possible Transaction, (c) requests for facility tours or management meetings in connection with the Possible Transaction, and (d) discussions or questions regarding procedures, timing and terms of the Possible
+Transaction, will be submitted or directed exclusively to Andrew Weisenfeld (weisenfeld@mtspartners.com, 212-887-2102) of MTS Health Partners, L.P., the financial
+advisor to the Company or such other persons designated by the Company for such purpose. |
+
+
+| |
+6. |
+Non-Solicit. You agree that, for a period of one year from the date of this letter agreement, neither you nor any of your Affiliates who are provided with Evaluation
+Material or become aware of your discussions regarding the Possible Transaction will, directly or indirectly, solicit for employment or employ (a) any individual serving as an executive officer of the Company, or (b) any employee of the
+Company or any of its subsidiaries with whom you have had substantial contact, or who is specifically identified to you (other than through a general roster of employees, general employee equity and compensation data or other employee data provided
+in due diligence that is general in nature), during your investigation of the Company and its business in connection with the Possible Transaction, in each case without obtaining the prior written consent of the Company; provided that you may
+(i) make general solicitations for employment not specifically directed at the Company or any of its subsidiaries or their respective employees and employ any person who responds to such solicitations, (ii) solicit and/or hire any person
+who contacts such party or its Affiliates on his or her own initiative without any initial direct or indirect solicitation or encouragement by such party or its Affiliates (other than as permitted by the preceding clause (i) and (iii) solicit
+and/or hire any person whose employment with the other party and its subsidiaries previously has been terminated for at least 90 days. |
+
+
+| |
+7. |
+ Standstill. You hereby acknowledge that, except as otherwise invited in writing by the
+Company’s Board of Directors or a Representative thereof or otherwise agreed in writing by the Company, for a period of one year from the date of this letter agreement (the “Standstill Period”), neither you nor any of your
+Affiliates who are provided with |
+
3
+
+
+
+
+
+
+
+
+| |
+
+Evaluation Material will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase a substantial portion of the Company’s assets or
+businesses, or similar transactions involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company; (b) (i) acquire beneficial ownership of any voting
+securities (including in derivative form) of the Company (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of the Company’s outstanding capital stock or consolidated assets, is referred to as a
+“Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) or consents
+to vote any voting securities (including in derivative form) of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter to be voted upon by the stockholders of the Company; (c) form, join or in
+any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) with respect to any voting securities (including in derivative form) of the Company or a Business Combination
+involving the Company; (d) request the Company (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that would
+reasonably be expected to require the Company to make a public announcement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit you from making a confidential proposal to the
+Company or the Company’s Board of Directors for a transaction involving a Business Combination (including a Possible Transaction) in a manner that would not reasonably be expected to require either party to make public disclosure with respect
+thereto. |
Notwithstanding anything to the contrary in this letter agreement, the Standstill Period shall automatically
+terminate and cease to be of any further force and effect upon the earliest to occur of any of the following: (a) the Company publicly announcing its or its Board of Directors’ approval or recommendation of (A) any person or
+“group” (as such term is used in the rules of the Securities and Exchange Commission) commencing or publicly announcing an intention to commence a tender or exchange offer that, if consummated, would make such person or “group”
+(as such term is used in the rules of the Securities and Exchange Commission) (or any of their respective Affiliates) the beneficial owner (within the meaning of Section 13(d)(1) of the Exchange Act) of 50% or more of the Company’s equity
+securities, (B) an offer or proposal by any person or “group” (as such term is used in the rules of the Securities and Exchange Commission) which if effected would result in the acquisition (whether by merger, consolidation,
+recapitalization, liquidation or otherwise) by such person or “group” (as such term is used in the rules of the Securities and Exchange Commission) of 50% or more of such other party’s equity securities or a majority of the
+consolidated assets of the Company and its Affiliates (any such transaction, an “Acquisition Transaction”), or (C) any Acquisition Transaction, or (b) the Company entering into or publicly announcing its intention to enter
+into a definitive agreement with a third party to effectuate an Acquisition Transaction. Notwithstanding anything to the contrary in this letter agreement, you may own or acquire, or propose to acquire, any assets or securities of the Company in
+connection with a transaction subject to approval pursuant to proceedings under the United States Bankruptcy Code.
+
4
+
+
+
+
+
+
+
+
+| |
+8. |
+No Representation of Accuracy. Although the Company has endeavored to include in the Evaluation Material information which it believes to be relevant for the purpose of your investigation, you understand
+that none of the Company or its Representatives have made or make in this letter agreement any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that none of the Company or its
+Representatives shall have any liability to you or any of your Representatives pursuant to this letter agreement resulting from the selection, use or content of the Evaluation Material by you or your Affiliates or Representatives. You further agree
+that you and your Representatives will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement relating to a Possible Transaction, subject to such limitations and restrictions as may be
+contained therein. |
+
+
+| |
+9. |
+Destruction or Return of Evaluation Material. You may determine not to pursue a Possible Transaction at any time and for any, or no, reason, and will promptly inform the Company at any time such a decision
+is made. Upon the Company’s demand, you shall, at your sole option, either promptly (a) destroy the Evaluation Material and any copies thereof, or (b) return to the Company all Evaluation Material and any copies thereof, and, in
+either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or electronic format containing
+Evaluation Material cannot be removed, erased or otherwise deleted from archival systems (also known as “computer or system back-ups”) but that such information will continue to be protected under
+the confidentiality requirements and non-use limitations contained in this letter agreement, and you and your Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder. Notwithstanding the foregoing, you and your Representatives may retain one copy of any work product prepared by you or them that contains Evaluation Material to the extent necessary or advisable
+pursuant to applicable legal or regulatory requirements, professional standards or reasonable business practice; provided that you and such Representatives shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such work product. |
+
+
+| |
+10. |
+Injunctive Relief. You acknowledge and agree that money damages may not be a sufficient remedy for any breach of this letter agreement by you or your Representatives and that the Company shall be entitled
+to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without proof of damages, and each party further agrees to waive, and shall cause its Representatives to waive, any requirement for the
+securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
+ |
+
+
+| |
+11. |
+ Definitive Agreement. You agree that unless and until a definitive agreement between the Company
+and you with respect to the Possible Transaction (a “Definitive Agreement”) has been executed and delivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to a Possible
+Transaction by virtue of this letter agreement or any other written or oral expression except, in the case of this letter agreement, for the matters specifically agreed to herein. In addition,
+ |
+
5
+
+
+
+
+
+
+
+
+| |
+
+you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with any Possible Transaction other than claims under any Definitive Agreement relating
+to a Possible Transaction or under this letter agreement. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include
+any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be modified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement. |
+
+
+
+| |
+12. |
+Process Agreements. You acknowledge that (a) the Company shall be free to conduct a process for a Possible Transaction as it in its sole discretion shall determine (including, without limitation,
+negotiating with any other prospective buyers and entering into a definitive agreement without prior notice to you or to any other person), and (b) any procedures relating to such Possible Transaction may be implemented or changed at any
+time prior to entry into a definitive agreement relating to such Possible Transaction without notice to you or any other person. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all
+proposals made by you or any of your Representatives with regard to the Possible Transaction, to terminate discussions and negotiations with you, and to refuse to provide any further access to Evaluation Material. You further acknowledge that the
+Company has entered into an Agreement and Plan of Merger with REGENXBIO, Inc. and Muddy Charles Acquisition Corporation, dated August 24, 2017 (the “Merger Agreement”), and that you have read the Merger Agreement in its
+entirety, including Sections 5.3 and 5.4 therein. You agree that nothing in this letter agreement shall be deemed to restrict the Company’s ability to comply with the provisions of the Merger Agreement, including Sections 5.3 and 5.4 therein,
+and in the case of any inconsistency between this letter agreement and the Merger Agreement, the terms of the Merger Agreement shall control with respect to any action by the Company. |
+
+
+
+| |
+13. |
+No Waiver. No failure or delay by the Company or any of its Representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no amendment,
+modification or waiver hereof shall be effective, unless in writing and signed by an officer or other authorized person of the Company hereto. |
+
+
+| |
+14. |
+Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other
+jurisdiction, nor the legality, validity or enforceability of any other provision. |
+
+
+| |
+15. |
+Governing Law and Forum. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the
+exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement or the
+Possible Transaction, and agree not to commence any action, suit or proceeding related thereto except in such courts. |
+
6
+
+
+
+
+
+
+
+
+| |
+16. |
+Counterparts. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of
+this letter agreement may be delivered by facsimile or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof. |
+
+
+
+| |
+17. |
+Term. This letter agreement shall terminate on the date that is two years following the date hereof. |
+Very truly yours,
+
+
+
+
+ |
+ |
+ |
+
+
+
+| Dimension Therapeutics, Inc. |
+
+ |
+ |
+
+| By: |
+ |
+ /s/ Annalisa Jenkins, MBBS, FRCP |
+
+| Name: |
+ |
+Annalisa Jenkins, MBBS, FRCP |
+
+| Title: |
+ |
+President & Chief Executive Officer |
+
Confirmed and Agreed to:
+
+
+
+
+ |
+ |
+ |
+
+
+
+| Ultragenyx Pharmaceutical Inc. |
+
+ |
+ |
+
+| By: |
+ |
+ /s/ Shalini Sharp |
+
+| Name: |
+ |
+Shalini Sharp |
+
+| Title: |
+ |
+Chief Financial Officer |
+
+ |
+ |
+
+| Date: |
+ |
+September 19, 2017 |
+
+
7
+
+
\ No newline at end of file
diff --git a/raw/1609351_0001193125-19-066373_d642137dex99d2.htm b/raw/1609351_0001193125-19-066373_d642137dex99d2.htm
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--- /dev/null
+++ b/raw/1609351_0001193125-19-066373_d642137dex99d2.htm
@@ -0,0 +1,263 @@
+
+EX-99.(d)(2)
+
+
+
+
+
+
Exhibit 99.(d)(2)
+
MUTUAL NON-DISCLOSURE AGREEMENT
+
THIS MUTUAL NON-DISCLOSURE
+AGREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the disclosure of information by and between
+Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300, Philadelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an
+address at 1 DNA Way, South San Francisco, CA 94080 (“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and receiving party herein,
+shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may be; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co.,
+Ltd, 1-1 Nihonbashi-Muromachi 2-chome, Chuo-ku, Tokyo, 103-8324
+(“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving written notice to the Company.
+
1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this
+Agreement, such scientific, technical, business and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose of evaluating the Confidential Information internally in
+connection with evaluating a possible transaction between the parties relating to one, more or all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the
+confidential and proprietary nature of such information.
2. Confidential Information. As used herein,
+“Confidential Information” will mean any and all scientific, technical, business and financial information, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of
+whether tangible, intangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) manufacturing,
+including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade secrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical
+compounds, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to the current, future, and
+proposed products and services of each of the parties, and including without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information,
+procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst reports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.
3. Obligations. Each
+receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and for no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential
+Information; (c) not to disclose any of the disclosing party’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its
+
+
+
+
+
+
Affiliates who have a “need to know” the information for the Purpose and who have
+signed confidentiality agreements or are otherwise bound by confidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees,
+consultants and representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality obligations. The receiving party agrees to be responsible for any breaches of any of the
+provisions of this Agreement by any of its employees, consultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential Information, each such copy will contain and state
+the same confidential or proprietary notices or legends, if any, that appear on the original.
4. Exceptions.
+The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving party can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent
+court: (a) is already known to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party; (c) is obtained by the receiving party from a third
+party; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing
+exceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions
+merely because individual features are in the public domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving party.
+Notwithstanding anything contained in this Agreement, other than in the case of an External Demand (as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any
+of the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made available to the receiving party (such information, “Transaction
+Information”) if but only if (i) such disclosure is required under applicable securities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure
+requirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant
+to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the disclosing party or the Transaction
+Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and circumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally
+available steps to resist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the
+circumstances. In the event that such protective order or other remedy is not obtained or that the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential
+Information or Transaction Information which the receiving party is advised by counsel is legally
+
-2-
+
+
+
+
+
+
+
required to be disclosed and to only those persons to whom the receiving party is advised by
+counsel are legally required to receive such information, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction
+Information, and (y) the receiving party shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.
+
5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as
+required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing party and will contain and state any and all confidential or proprietary
+notices or legends that appear on the original, unless otherwise authorized in writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each receiving party will promptly
+destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other tangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding
+the forgoing the receiving party may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external advisors, if any, may keep one copy of their Confidential Information in
+accordance with the laws and professional standards applicable to them.
6. No Other Rights. The parties
+recognize and agree that nothing contained in this Agreement will be construed as granting any property rights, by license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any
+invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each receiving party will not make, have made, use or sell for any purpose any product or
+other item using, incorporating or derived from any Confidential Information of the disclosing party.
+
7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of
+twelve (12) months from the date of this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
+amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase
+of Spark’s assets or businesses, or similar transactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i) acquire beneficial ownership of any
+voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a
+“Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents
+to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark, or (iv)
+
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+
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+
propose any matter to be voted upon by the stockholders of Spark; (c) directly or
+indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to
+any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark (or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this
+paragraph (including this sentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public announcement regarding a potential Business Combination; provided, however,
+that nothing in this paragraph shall prohibit Company from make a confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for a transaction involving a Business
+Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing restrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its
+Affiliates without any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive agreement providing for, a Business Combination, (B) a third party commences,
+or announces an intention to commence, a tender or exchange offer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any time recommends, or publicly discloses
+an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange offer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days
+from the date such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or exchange offer (as it may have been amended) or at any time thereafter changes its
+recommendation with respect to such tender or exchange offer (as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s shareholders not tender their shares into such
+tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act) commences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the
+Exchange Act) or consents with respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of the members of the board of directors of Spark or result in a majority
+of the seats of the board of directors of Spark becoming vacant, or (D) with respect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination, Spark’s board of
+directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange offer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill
+agreements similar to the provision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill Agreement”), and the parties hereby agree that, to the extent
+that any such Other Standstill Agreement contains provisions that are more favorable to the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable terms as set forth
+in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this
+
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+
agreement shall restrict Company or its Affiliates, directly or indirectly, from taking any
+action described in this paragraph 7 (including using for the purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7 shall prevent the Company from entering into
+license, collaboration or other similar agreements in the ordinary course of business.
8. Passive Investments.
+The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares or other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5%
+of such voting securities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its Affiliates employees so long as such investments are directed by independent
+trustees, administrators or employees to whom no Confidential Information has been disclosed.
9. Term and
+Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time upon thirty (30) days written notice to the other party. The receiving party’s obligations under
+this Agreement will survive termination or expiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s heirs, successors and assigns after such
+termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth therein.
+
10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the
+address set forth in the opening paragraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight courier; or (b) three (3) days after deposit in the mail if
+sent by pre-paid, certified mail, return receipt requested mail.
+
11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject
+matter of this Agreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof
+or affect the construction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is made in writing and signed by both
+parties. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the Federal
+courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened
+breach) of this Agreement by the receiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened
+breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such
+remedies shall not be the exclusive
+
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+
+
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+
+
+
+remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this Agreement is found by a proper authority to be
+unenforceable or invalid, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or
+invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that a party may
+assign this Agreement to an Affiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of substantially all assets or similar transaction of the assigning party.
+Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export
+requires an export license or other governmental approval without first obtaining such license or approval. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall
+constitute one and the same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.
+
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+
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IN WITNESS WHEREOF, duly
+authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.
+
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+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
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+| SPARK THERAPEUTICS, INC. |
+ |
+ |
+ |
+ROCHE HOLDINGS INC. |
+
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+ |
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+ |
+ |
+ |
+ |
+ |
+ |
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+ |
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+ |
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+
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+| By: |
+ |
+ /s/ Joseph W. LaBarge |
+ |
+ |
+ |
+By: |
+ |
+ /s/ Bruce Resnick |
+
+
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+| Name: |
+ |
+Joseph W. LaBarge |
+ |
+ |
+ |
+Name: |
+ |
+Bruce Resnick |
+
+| Title: |
+ |
+Chief Legal Officer |
+ |
+ |
+ |
+Title: |
+ |
+Vice President |
+
+
Exhibit 10.16
AMENDED AND RESTATED
SERVICES, RESELLER AND NON-COMPETITION AGREEMENT
+
THIS AMENDED AND RESTATED SERVICES, RESELLER AND NON-COMPETITION AGREEMENT (this “Agreement”) is
+made and entered into effective as of June 27, 2013 (the “Effective Date”) by and between The Advisory Board Company, a Delaware corporation (“ABCO”), and Evolent Health, Inc. (f/k/a VPHealth, Inc.), a Delaware
+corporation (“Evolent”), (each, a “Party”, and collectively, the “Parties”).
RECITALS
WHEREAS, ABCO and Evolent entered into a Services,
+Reseller and Non-Competition Agreement (the “Original Agreement”), effective as of August 31, 2011 (the “Original Effective Date”);
+WHEREAS, since entering into the Original Agreement, Evolent and ABCO have continued to explore ways to improve the efficiency and
+implementation of their relationship; and
WHEREAS, as a result of the foregoing efforts, the Parties have
+agreed to amend and restate the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in
+consideration of the above recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
+1. DEFINITIONS. For purposes of this Agreement:
1.1 “ABCO Restricted Products and Services” means (a) care management services including, but not limited to, traditional disease management services, direct patient outreach
+and other service-based care management offerings (e.g., readmissions management teams, nurse call centers, on-site care management teams); (b) care management workflow software designed for and used by provider-owned payor organizations or
+other entities intending to conduct active care management campaigns targeted at managing population health/longitudinal outcomes (i.e, solutions that are the same as or substantially similar to (i.e. functionality that is redundant in substantial
+and material respects with) HealthPlaNet); (c) services primarily intended to support cost reduction and benefit changes for health system employees; (d) consulting services comparable and competitive with blueprint consulting services
+offered by Evolent as of the Effective Date (“Blueprint Services”), (e) Exclusive TPA Services or (f) Crimson Care Registry products. For the avoidance of doubt, Restricted Products and Services does not include behavioral
+health-related services or software (e.g., Askesis Development Group software), services similar to those offered by UPMC WorkPartners (e.g., “Take-a-Healthy-Step” or similar health and wellness programs, occupational medicine, on-site
+clinic implementation and administration, employee assistance services, absence management or workers’ compensation services), or software or solutions similar to those offered by EBenefits Solutions, LLC.
+1.2 “Active Sales Process”, with respect to any Person as of any date on which Evolent proposes to add such
+Person to the list of Evolent Top Prospects, means such Person (a) is not an Evolent Client as of such date and (b) either (i) has purchased ABCO Restricted Products and Services from ABCO prior to such date or (b) was engaged in
+active discussions with ABCO about acquiring ABCO Restricted Products and Services (including, but not
+
1
+
+
+
+
+
+
+limited to, a review of the applicable offering of ABCO Restricted Products and Services) as of such date.
1.3 “Affiliate” means any Person which Controls, is Controlled by, or is in common Control with, another Person.
+1.4 “Business Plan” has the meaning set forth in that certain Intellectual Property License and Data Access
+Agreement between the Parties.
1.5 “Change of Control” with respect to any entity means a
+transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the subject entity, the entity’s shares representing more than fifty percent (50%) of the outstanding voting
+power of such entity.
1.6 “Confidential Information” means any and all technical and
+non-technical information, whether conveyed verbally, in writing, electronically or by any other means, including, but not limited to, trade secrets, source code, technology, know-how and proprietary information, techniques, plans or any other
+information relating to any research project, analysis, work in process, future development, scientific, engineering, marketing or business plans or financial, contractual or personnel matters relating to either Party or its present or future
+products, services, sales, suppliers, identity of and information relating to customers and prospective customers, customer or prospect list, prospective employees, investors or affiliates or other proprietary information disclosed or otherwise
+supplied in confidence by either Party to the other, to the extent that such information is provided pursuant to this Agreement by one Party to the other Party and is marked “confidential” or “proprietary” or that should be
+reasonably understood by the Receiving Party (based on the nature of the information or the context in which the information is disclosed) should be considered confidential. Confidential Information will not include information to the extent that:
+(a) such information is or becomes publicly available other than through any act or omission of either Party in breach of this Agreement; (b) such information was received by the Receiving Party, other than under an obligation of
+confidentiality, from a third party who had no obligation of confidentiality to the other Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure or was independently developed by the Receiving
+Party, as reflected by the Receiving Party’s internal, written and dated documentation; or (d) an applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure
+the Disclosing Party will give notice to the other Party so that the other Party may take reasonable steps to oppose or limit such disclosure, so that the Disclosing Party does not disclose any more information than necessary to comply with such
+legal process. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemption with documentation or other credible evidence.
+1.7 “Control” as used with respect to any Person, means the possession, directly or indirectly, of the power to
+direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
1.8 “Evolent Clients” means entities under a current contract with Evolent for an implementation and/or long-term services contract.
+1.9 “Evolent Top Prospects” means, as of any date, up to twenty (20) potential Evolent customers in the
+Evolent sales pipeline identified by Evolent that are not Evolent
+
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+
+
+
+
+Clients as of such date, and (a) are engaged in active discussions with Evolent regarding purchasing Evolent products and services and/or (b) are under a current contract with
+Evolent for Blueprint Services or other services that do not constitute implementation or long-term services; provided, however, that (i) the list of such potential Evolent customers may be updated by Evolent on a quarterly basis, and ABCO
+shall have the opportunity upon receipt of each such quarterly update to notify Evolent if any of the Persons added to such list are in an Active Sales Process with ABCO and shall therefore be removed from such list, and (ii) no Person shall
+remain on the list of Evolent Top Prospects for more than (x) twelve (12) consecutive months, in the case of potential Evolent customers without a signed agreement with Evolent, or (y) twenty-four (24) consecutive months, in the
+case of potential Evolent Clients that signed an agreement for Blueprint Services with Evolent before or within twelve (12) months of being added to the list of Evolent Top Prospects.
+1.10 “Exclusive TPA Services” means certain services as set forth on Schedule 1 of the UPMC Reseller Agreement
+(as in effect on the Effective Date), to the extent that UPMC Health Plan, Inc., a Pennsylvania nonprofit corporation (“UPMC”), has the exclusive right to provide such services to Evolent, for resale by Evolent to its customers.
+
1.11 “Disclosing Party” means a Party that provides Confidential Information to the other Party,
+or the other Party’s Affiliates.
1.12 “Governmental Authority” means any federal, state,
+municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
1.13 “Law” means all international, federal, country, state, provincial, local and other laws, rules and regulations, declaration, decree, directive, legislative enactment, order, code,
+ordinance, regulation, rule or other binding restriction of or by any Governmental Authority, as the same are promulgated, supplemented or amended from time to time.
1.14 “Loss” individually, and collectively, “Losses” means all claims, liabilities, obligations, losses, costs, expenses (including, without limitation, legal,
+accounting and similar expenses), litigation, proceedings, fines, taxes, levies, imposts, duties, deficiencies, assessments, charges, penalties, allegations, demands, damages (including, but not limited to, actual, punitive or consequential,
+foreseen or unforeseen, known or unknown, fixed or contingent, and matured or unmatured), civil and criminal violations of Law, settlements and judgments of any kind or nature whatsoever.
+1.15 “Person” means any individual, corporation, partnership, firm, joint venture, association, limited liability
+company, limited liability partnership, joint-stock company, trust, joint venture, unincorporated organization, governmental, judicial or regulatory body, business unit, division or any other business entity, organization or Governmental
+Authority.
1.16 “Receiving Party” means a Party that receives Confidential Information from
+the other Party or the other Party’s Affiliates.
1.17 “Statement of Work” or
+“SOW” means an agreement by and between ABCO and Evolent that contains the detailed description of services, scope, specifications, pricing, implementation plan, timetables, milestones, and other terms and conditions for each
+procurement of services, as applicable.
+
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+
+
+
+
+ 1.18 “UPMC Reseller Agreement” means that certain Second Amended and
+Restated Reseller, Services and Non-Competition Agreement between UPMC and Evolent dated as of [the Effective Date].
2. SERVICES TO
+BE PROVIDED BY ABCO.
2.1 General Services:
+2.1.1 Minimum Purchase. The Parties hereby acknowledge and agree that Evolent has purchased from ABCO a minimum of Two Hundred
+Thousand Dollars ($200,000) of services (as described in Section 2.2.1) (the “Original Minimum Purchase”) for delivery between the Original Effective Date and the first anniversary thereof.
+2.1.2 Statements of Work. The specific description, price, service levels (if applicable) and other project, service,
+and/or customer-specific terms for a particular service that may be provided by ABCO to Evolent (each, a “Service”, and collectively, the “Services”) shall be set forth in a Statement of Work that will be created on
+a project by project basis.
2.2 Right of First Offer and Process for Invoking:
+2.2.1 Applicable Services. Throughout the Term, ABCO shall have the right of first offer to provide the following services
+to Evolent and Evolent’s customers:
(a) Physician practice management consulting and other
+physician practice management services;
(b) Physician incentive design services;
+(c) Medical home development consulting services; and
+(d) Performance analytics shared with physicians with the intent to improve outcomes.
+2.2.2 Process for Exercising Right of First Offer. Evolent shall notify ABCO in writing in the event Evolent desires to
+receive any of the above services (“First Offer Services”). ABCO shall have a period of thirty (30) days (“First Offer Services Evaluation Period”) within which to conduct its evaluation and diligence with
+respect to providing such First Offer Services. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such
+First Offer Services Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to provide such services to Evolent. If ABCO elects to provide such First Offer Services, Evolent agrees to engage in good faith negotiations with
+ABCO, on an exclusive basis for a period of sixty (60) days, regarding the specific terms covering such First Offer Services.
2.3 Failure to Execute a Service Agreement for the VBC Innovation Center: The Parties acknowledge and agree that it was their intent as of the Original Effective Date to enter into a service
+agreement under which Evolent would engage ABCO to provide certain consulting, development and support services in connection with the creation, launch, implementation and ongoing support of a Value-Based Care Innovation Center (the “VBC
+Innovation Center”), in consideration for which Evolent would pay ABCO a fixed fee of Eight Hundred Thousand Dollars ($800,000) per year (“Fixed Fee”) for each of the first two (2) years of the term of such VBC
+Innovation Center service agreement. The Parties acknowledge and
+
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+
+
+
+
+
+agree that, notwithstanding the fact that they negotiated with diligence and in good faith the specific terms and conditions of such service agreement, the Parties were unable to reach an
+agreement with respect to the VBC Innovation Center. Accordingly, the Original Minimum Purchase is increased to One Million Two Hundred Thousand Dollars ($1,200,000) (the “Minimum Purchase”) as follows: (a) between the Original
+Effective Date and the second anniversary thereof, Evolent shall have purchased from ABCO a minimum of Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to such second anniversary of the Original Effective Date), and
+(b) inclusive of the purchases described in clause (a), between the Original Effective Date and the third anniversary thereof, Evolent shall have purchased from ABCO a minimum of One Million Two Hundred Thousand Dollars ($1,200,000) of services
+for delivery on or prior to such third anniversary of the Original Effective Date); provided that, for purposes of this sentence, “services” shall include consulting, software, professional or analytic services provided from time to time
+by ABCO to Evolent (other than services in connection with the provision of any office space by or on behalf of ABCO to Evolent) or, pursuant to a joint written proposal by ABCO and Evolent, to any Evolent Client.
+2.4 Reservation of Rights: For the avoidance of doubt, Evolent is not precluded from offering and providing services directly to
+its customers, subject (a) to (i.e., after ABCO has had the full opportunity to exercise) ABCO’s right of first offer to provide any First Offer Services in accordance with Section 2.2) and (b) to Evolent’s compliance with
+its non-competition obligations as set forth in Section 6.2.
2.5 Designation of Relationship Managers: In order
+to support the launch and ongoing success of the exclusive reseller relationship between ABCO and Evolent, each Party agrees to designate a senior level individual who will serve as the primary liaison and “go to” contact and relationship
+manager for such Party (each, a “Relationship Manager”). Each Party’s Relationship Manager’s role and responsibilities would include: (a) facilitating day-to-day communications between the Parties regarding
+customer-facing activities, such as marketing, promotional and sales activities and preparing and submitting bids, proposals, responses to requests for proposals, fee estimates, Statements of Work and project plans; (b) receiving and submitting
+requests between the Parties for information and/or assistance; (c) overseeing the efficient knowledge transfer and flow of information between the Parties; (d) facilitating communications between the appropriate individuals within Evolent
+and ABCO, with respect to product and service offering development; and (e) providing the first level of performance review or escalation in the event of a Dispute as provided in Section 13. The Relationship Managers will meet regularly,
+but no less frequently than monthly, as reasonably necessary, to maintain a good working relationship between the Parties. Each Party may change its Relationship Manager by giving the other Party reasonable notice as long as the change is
+implemented in a manner that does not cause any significant disruption to each Party’s business operations and business relationship.
+3. FEES; PAYMENT TERMS; SHORTFALL.
3.1 Fees; Timing of Payments: Evolent shall pay ABCO the applicable fees for the Services performed by ABCO pursuant to a Statement of Work, as follows: (a) unless the Parties otherwise agree
+in writing, a deposit of 50% of the total fees for the particular project shall be paid upon signing of the Statement of Work; (b) ABCO will submit an invoice to Evolent for the balance upon completion of the work; and (c) Evolent shall
+pay ABCO for such invoiced amount within thirty (30) days after receipt of such invoice.
+
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+ 3.2 Minimum Purchase and Shortfall: Evolent agrees to pay ABCO the Minimum Purchase.
+If the aggregate amount of Services actually procured by Evolent from ABCO is not equal to or greater than (a) Seven Hundred Thousand Dollars ($700,000) of services for delivery on or prior to the second anniversary of the Original Effective
+Date or (b) inclusive of the purchase described in clause (a), the Minimum Purchase of services for delivery on or prior to the third anniversary of the Original Effective Date, Evolent shall pay ABCO the amount of the shortfall (i.e., the
+difference between Seven Hundred Thousand Dollars ($700,000) or the Minimum Purchase amount, as applicable, less the sum of: (a) the aggregate fees for the actual amount of Services procured; and (b) any Credits (as provided in the next
+sentence) (the “Shortfall”), if any, on or before August 31, 2013 or August 31, 2014, as applicable. In the event that ABCO refuses or fails, without reasonable cause, to provide any of the Services requested by Evolent
+(provided the scope of the Services requested is within the scope customarily provided by ABCO), the fees that would otherwise have been applicable had ABCO agreed to provide such Services would count as a “Credit”. As of the
+date hereof, no such Credits have accrued.
4. TERM AND RENEWAL. The initial term of this Agreement shall commence on the
+Effective Date and unless sooner terminated in accordance with the terms hereof, shall continue until August 31, 2016 (“Initial Term”). Thereafter, this Agreement shall automatically be renewed for another five-year term
+(“Renewal Term”) unless either Party elects to terminate this Agreement by providing the other Party with written notice of termination one hundred eighty (180) days prior to the expiration of the current term.
+(“Initial Term” and “Renewal Term” collectively, the “Term”).
5. REFERRAL
+FEES, SOLICITATION AND COMPETITION AND POST-CLOSING SERVICES.
5.1 Referral Fees:
+5.1.1 During the Term, ABCO will pay Evolent a sales referral fee for any sale made by ABCO that resulted from a “net” new sale
+from a new customer that was not already in ABCO’s sales pipeline (i.e., a “warm lead”) or a then-current customer of ABCO generated directly by Evolent’s efforts and without any assistance from any ABCO employee or
+representative (including any Evolent employee that serves on the Board of Directors of ABCO), equal to 5% of the total ABCO revenue from the new customer during the initial twelve (12) months of services under the services agreement with such
+new customer.
5.1.2 During the Term, Evolent will pay ABCO a sales referral fee for any sale made by Evolent that resulted
+from a “net” new sale from a new customer that was not already in Evolent’s sales pipeline (i.e., a “warm lead”) or a then-current customer of Evolent generated directly by ABCO’s efforts and without any assistance from
+any Evolent employee or representative (including any ABCO employee that serves on the Board of Directors of Evolent), in accordance with the following terms:
(a) ABCO will receive a one-time referral fee for any “employee health” diagnostic, consulting or broker services provided by Evolent to a Covered Health System, equal to the lesser of $20,000
+or 5% of the total Evolent revenue from the Covered Health System during the initial twelve (12) months of services under the service agreement with such Covered Health System.
+
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+
+
+ (b) ABCO will receive $50,000 per year for three (3) years for
+each health system joining Evolent as an Employee Health Platform Customer. An “Employee Health Platform Customer” is defined as a health system purchasing diagnostic/consulting services and ongoing medical management/health plan
+services (i.e., care management, HealthPlaNet care management application, and the TPA platform, etc.).
+(c) ABCO will receive $100,000 per year for three (3) years for a health system joining Evolent as a Platform
+Health Plan Customer. A “Platform Health Plan Customer” is defined as a health system purchasing ongoing medical management services, ongoing health plan outsourcing services (i.e., TPA) and health plan management services for
+purposes of a licensed insurance entity with at least fifty thousand (50,000) lives (beyond the employee population).
(d) With the exception of making the introduction (either through an email or an in-person meeting) (to generate the “warm lead”), ABCO would not be expected to perform any actual duties or
+incur actual cost to receive a referral fee.
(e) The annual referral fees for each referral would be capped
+at the lesser of (x) 5% of annual revenue generated by Evolent for the respective customer and (y) the $50,000 or $100,000 figures described above, as applicable.
6. SOLICITATION AND COMPETITION.
6.1 Scope:
+
6.1.1 Throughout the Term, ABCO agrees not to offer any ABCO Restricted Products and Services to (a) any Evolent Clients
+or (b) any Evolent Top Prospects; provided, however, that ABCO shall not be restricted from making any such offer to any Evolent Top Prospect or Evolent Client with whom ABCO was, at the time such Person was identified as an Evolent Top
+Prospect or became an Evolent Client, engaged in an Active Sales Process. The foregoing restrictions shall not apply in the event of a Change of Control of Evolent or in the event that ABCO ceases to be a shareholder of Evolent.
+6.1.2 None of the foregoing would prohibit ABCO from:
+(a) Marketing, offering, licensing or selling versions of any of its Crimson Population Risk Management products, or the
+successors to any such products, provided that such products, or the successors to any such products, are not the same as or substantially similar to (i.e., includes functionality that is redundant in substantial and material respects with)
+HealthPlaNet as it exists as of the Effective Date.
(b) Supporting employers with care management related
+best practices and research.
(c) Offering traditional “dedicated advisor” support in conjunction
+with ABCO’s traditional business intelligence offerings.
(d) Marketing, offering, licensing or selling
+its employer health product.
(e) Providing physician management consulting and other physician management
+services.
+
7
+
+
+
+
+
+ 6.2 Restrictions Relating to Certain ABCO Products and Services:
+Evolent shall not, until the earlier of (x) ABCO’s ceasing to be a shareholder of Evolent or (y) the seventh (7th) anniversary of the date of this Agreement, promote, market, provide, offer or sell (a) unbundled software
+applications, software tools or other similar technologies (including, without limitation, software as a service, analytics technology or data services) (each, a “Technology Solution”), (b) consulting services that are not
+intended to lead to or be a part of a Blueprint Services engagement, implementation contract and/or long-term services contract, or (c) any best practices membership programs or unbundled or bundled physician practice management and other
+physician practice management consulting services, in each case referred to in this clause (c) that are substantially similar to, or that are competitive with, ABCO’s best practices membership programs or physician practice management or
+other physician practice management consulting services that are offered by ABCO as of the date first written above. For the avoidance of doubt, “unbundled” means on a stand-alone basis, instead of “bundled”, which contemplates
+that the Technology Solution is both (i) offered as part of a “packaged”, integrated offering, in conjunction with other Evolent products or services that are not Technology Solutions (and not only services that constitute customary
+software, data and end user support-related services), such as the Exclusive TPA Services, and (ii) incidental to the provision of such other Evolent products or services. Notwithstanding any other provision hereof, the foregoing restrictions
+in this Section 6.2 shall survive a Change of Control of Evolent for seven (7) years from the date of this Agreement; provided, however, that prior to the seventh (7th) anniversary of the date of this Agreement, the acquiring party in a Change of Control of Evolent shall be not be
+subject to the foregoing restrictions with respect to any Technology Solutions or consulting services, in each case, that are unrelated to the Evolent assets acquired.
6.3 Non-Solicitation or Hiring: During the Term and for a period of eighteen (18) months thereafter, Evolent shall not solicit or hire any of ABCO’s employees without ABCO’s prior
+written consent.
7. EXCLUSIVE RESELLER RIGHTS FOR FUTURE PRODUCTS.
+In the event that Evolent creates a discrete or segregable product or service that can be sold to healthcare providers, Evolent
+shall notify ABCO in writing of such new offerings (“New Products”). ABCO shall have a period of ninety (90) days (“New Products Evaluation Period”) within which to conduct its evaluation and diligence with
+respect to providing such New Products. Evolent shall cooperate with ABCO and provide reasonable assistance and information to ABCO to enable ABCO to conduct its evaluation. Within five (5) business days after the expiration of such New
+Products Evaluation Period, ABCO shall notify Evolent in writing whether or not it wishes to have the right to resell such New Products. If ABCO elects to resell such New Products, Evolent and ABCO agree to negotiate in good faith on an exclusive
+basis for one hundred twenty (120) days the terms of a reseller agreement, under which ABCO would be the exclusive distributor (in addition to Evolent) of such New Products.
8. CONFIDENTIALITY.
8.1 Confidential Information:
+ABCO acknowledges that in connection with its rights and obligations under this Agreement it may gain access to the Confidential Information of Evolent and its customers and Affiliates. Evolent acknowledges that in connection with its rights
+
+
8
+
+
+
+
+
+
+and obligations under this Agreement, it may gain access to the Confidential Information of ABCO and its customers and Affiliates.
+8.2 Non-Disclosure: The Receiving Party may disclose the Disclosing Party’s Confidential Information strictly on a
+need-to-know basis to only those personnel, including employees of the Receiving Party’s contractors, who require access to the Disclosing Party’s Confidential Information in order to perform or derive benefit from the Services or
+otherwise meet its obligations under this Agreement. The Receiving Party agrees: (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree (but no less than a reasonable degree) of care and
+protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and
+(c) not to copy or use the Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement. Each Receiving Party is
+responsible for ensuring that its employees, agents and contractors strictly abide by the requirements of confidentiality and restrictions on use as provided in this Section 8.2 and shall be liable to the Disclosing Party for any acts or
+omissions of its employees, agents and independent contractors relating to the Disclosing Party’s Confidential Information. The Receiving Party is allowed to disclose Confidential Information of the Disclosing Party to the extent required by
+Law or by the order or a court of similar judicial or administrative body with jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing
+Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The provisions of this Section 8 shall survive beyond the expiration or termination of this
+Agreement.
8.3 Injunctive Relief: The Parties acknowledge and agree that monetary damages may be inadequate to
+compensate for a breach of the provisions contained in this Section 8 or other confidentiality provisions of this Agreement. In the event of such breach, the injured Party shall be entitled to seek injunctive relief (without the need to post
+bond) and any and all other remedies available at Law or in equity. This Section 8.3 in no way limits the liability or damages that may be assessed against a Party in the event of a breach by the other Party of any of the provisions of this
+Section 8.
8.4 Residuals: Notwithstanding anything in this Section 8 to the contrary, subject to any
+applicable statutory intellectual property rights applicable to patents, trademarks or copyrights, either Party may use “Residuals” for any purpose, including without limitation, for use in development, manufacture, promotion, sale
+and maintenance of its products and services; provided, however, that this right to Residuals does not represent a license under any patents, copyrights or trademarks of the Disclosing Party. The term “Residuals” means any
+information that is retained in the unaided memories of the Receiving Party’s employees who have had access to the Disclosing Party’s Confidential Information pursuant to the terms of this Agreement.
+9. WARRANTIES.
9.1 Authority/No Conflict: ABCO represents and warrants that (a) it has the power and authority to enter into and perform its obligations under this Agreement without conflict with, default
+under, or violation of any Law, regulation, or agreement binding upon it, and (b)
+
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+
+
+
+
+
+
+this Agreement has been duly authorized by all necessary organizational action, and duly and validly executed and delivered by it, and constitutes its legally valid and binding obligation,
+enforceable in accordance with its terms.
9.2 Services: ABCO represents, warrants and covenants that the Services
+provided under this Agreement will be performed in a professional and workmanlike manner.
9.3 Compliance with
+Laws/Approvals: Each of ABCO and Evolent shall comply in all material respects with all Laws and regulations applicable to ABCO or Evolent, as applicable, in performing its obligations under this Agreement. To the extent applicable, ABCO shall
+be responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of ABCO and its contractors in connection with the performance of its obligations under this Agreement, and Evolent shall be
+responsible for obtaining all necessary permits, licenses, and consents, including governmental approvals, required of Evolent and its contractors in connection with the performance of its obligations under this Agreement.
+9.4 Limitations of Warranty: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ABCO MAKES NO OTHER WARRANTY OR REPRESENTATION,
+ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR-FREE OPERATION OR OTHERWISE
+HEREUNDER. The disclaimer of warranties and limitations set forth in this Agreement constitute an essential part of this Agreement.
+10. INDEMNIFICATION.
10.1 IP Indemnification: ABCO shall defend, indemnify and hold harmless Evolent and its Affiliates (other than ABCO), customers, and their respective officers, directors and employees from and
+against any Losses resulting from a claim that the Services provided by ABCO under this Agreement infringes or misappropriates a third party’s intellectual property rights. ABCO shall also use commercially reasonable efforts to modify the
+allegedly infringing Services to make it non-infringing, procure a license from the third party claiming infringement to permit Evolent to continue to use the Services, or provide Evolent with functionally equivalent and non-infringing Services.
+THIS SECTION 10.1 SETS FORTH ABCO’S SOLE AND EXCLUSIVE LIABILITY, AND EVOLENT’S SOLE AND EXCLUSIVE REMEDY, FOR ALLEGATIONS OR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND ASSERTED AGAINST EVOLENT, ITS AFFILIATES (OTHER THAN
+ABCO), CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES. ABCO shall not be obligated to indemnify Evolent, its Affiliates, customers, and their respective officers, directors and employees for infringement or misappropriation claims
+to the extent such claims arise out of use by Evolent or its customers of any of the Services in a manner other than as contemplated by the Parties under this Agreement.
10.2 ABCO’s Indemnification: ABCO hereby agrees to indemnify, defend, and hold Evolent and its Affiliates (other than ABCO), and all of their respective directors, officers, members, managers,
+partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement, including any or all SOWs, by ABCO or its personnel (including contractors);
+(b) breach of any
+
10
+
+
+
+
+
+
+
+of ABCO’s representations, warranties, and covenants in this Agreement; or (c) negligence or willful misconduct by ABCO or its personnel (including contractors).
+10.3 Evolent’s Indemnification: Evolent hereby agrees to indemnify, defend, and hold ABCO and its Affiliates (other than
+Evolent), and all of their respective directors, officers, members, managers, partners, employees, agents, successors and assigns, harmless from and against any Losses arising from or related to: (a) the material breach of this Agreement,
+including any or all SOWS, by Evolent or its personnel (including contractors); (b) breach of any of Evolent’s representations, warranties and covenants in this Agreement; or (c) negligence or willful misconduct by Evolent or its
+personnel (including contractors).
10.4 Indemnification Procedure:
+10.4.1 Notice of Claim. Any Party seeking indemnification hereunder (the “Indemnitee”) shall notify the
+Party liable for such indemnification (the “Indemnitor”) in writing of any event, omission or occurrence that the Indemnitee has determined has given or could give rise to Losses that are indemnifiable hereunder (such written notice
+being hereinafter referred to as a “Notice of Claims”). Such Notice of Claims shall be given promptly after the Indemnitee becomes aware of its own claim or that of a third party; provided that the failure of any Indemnitee to give
+notice as provided in this Section 10.4.1 shall not relieve the Indemnitor of its obligations under this Section 10. A Notice of Claims shall specify in reasonable detail the nature and any particulars of the event, omission, or occurrence
+giving rise to a right of indemnification. The Indemnitor shall satisfy its obligations hereunder, as the case may be, within thirty (30) days of its receipt of a Notice of Claims.
+10.4.2 Process. With respect to any third party claim, demand, suit, action, or proceeding that is the subject of a Notice
+of Claim, the Indemnitor shall, in good faith and at its own expense, defend, contest, or otherwise protect against any such claim, demand, suit, action, or proceeding with legal counsel of its own selection (and reasonably acceptable to the
+Indemnitee). The Indemnitee shall have the right, but not the obligation, to participate, at its own expense, in the defense thereof through counsel of its own choice and shall have the right, but not the obligation, to assert any and all cross
+claims or counterclaims it may have. So long as the Indemnitor is defending in good faith any such third party claim, demand, suit, action or proceeding, the Indemnitee shall at all times cooperate, at its own expense, in all reasonable ways with,
+make its relevant files and records available for inspection and copying by, and make its employees available or otherwise render reasonable assistance to, the Indemnitor. In the event that the Indemnitor fails to timely defend, contest or otherwise
+protect against any such third party claim, demand, suit, action, or proceeding, the Indemnitee shall have the right, but not the obligation, to defend, contest, assert cross claims or counterclaims, or otherwise protect against, the same and may
+make any compromise or settlement thereof and be entitled to all amounts paid as a result of such third party claim, demand, suit, or action or any compromise or settlement thereof. The Indemnitor will not consent to the entry of any judgment or
+enter into any settlement with respect to any such third party claim, demand, suit, action or proceeding without the prior written consent of the Indemnitee, which will not be unreasonably withheld, and provided that no settlement shall require the
+Indemnitee to admit liability, or perform or become subject to additional obligations thereunder.
11. LIMITS OF LIABILITY.
+EXCEPT WITH RESPECT TO OR BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION UNDER SECTION 8,
+
11
+
+
+
+
+
+
+
+NEITHER EVOLENT NOR ABCO SHALL BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR AMOUNTS INCLUDING WITHOUT LIMITATION
+DAMAGES FOR LOSS OF INCOME, PROFITS, OR SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATING TO ITS PERFORMANCE UNDER THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE
+POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE AMOUNT OF REVENUE ACTUALLY RECEIVED BY ABCO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
+12. TERMINATION.
12.1 Termination for Cause: Either Party shall have the right to terminate this Agreement in the event the other Party materially violates a material provision of this Agreement and such violation
+is not cured or cannot be cured within thirty (30) days after written notice of such material violation.
12.2
+Survival: The rights and obligations contained in Sections 1, 5 (with respect to Evolent’s payment obligations that may extend beyond the Term), 6.2, 6.3, 8, 9.4, 10, 11, 12.2, 13 and 14 shall survive any termination or expiration of
+this Agreement.
13. ESCALATION; DISPUTE RESOLUTION. Subject to the terms of Section 13.5, the procedures of this Section 13
+will control the resolution of any and all disputes between the Parties including, without limitation, any dispute relating to disputed monies owing or breach of warranty (each, a “Dispute”). The Parties will seek to resolve each
+Dispute as follows:
13.1 First Level Performance Review: Each Party’s Relationship Manager will meet as often as
+will reasonably be required by either Party to review the performance of either Party under this Agreement and to resolve the Dispute. If these representatives are unable to resolve the Dispute within ten (10) business days after the initial
+request for a meeting, then the Parties will submit the Dispute to an executive level performance review as provided in Section 13.2 below.
13.2 Executive Level Performance Review: Face-to-face negotiations will be conducted by a senior executive officer of each Party (or such other executive as a Party may designate). If these
+representatives are unable to resolve the Dispute within five (5) business days after the Parties have commenced negotiations or ten (10) business days have passed since the initial request for a meeting at this level, then the Parties may
+jointly engage the services of a third-party mediator.
13.3 Arbitration: If the Parties are unable to resolve the
+Dispute through the alternative mechanisms described above, the Parties shall submit the Dispute for resolution through binding arbitration, except as otherwise provided in Section 13.5. The Parties agree and consent to such arbitration
+proceeding taking place in Wilmington, Delaware, and in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that discovery may be had in accordance with the Federal Rules of Civil Procedure. The Parties
+shall be permitted at least six (6) months from the date of the filing of the Arbitration Demand to conduct discovery. The arbitration proceedings shall be conducted by a panel of three (3) impartial
+
+
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+
+
+arbitrators, with each Party selecting one (1) of the impartial arbitrators and those two (2) arbitrators then selecting the third impartial arbitrator, all such selections to be made
+through the procedures of the American Arbitration Association. At least one (1) arbitrator must be an attorney licensed under the Laws of Pennsylvania and at least one (1) arbitrator (may be the same Person as the Pennsylvania attorney)
+must have direct and substantial experience in the industry pertinent to the subject matter of the Dispute. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof; provided, however, in
+rendering its decision, the arbitrators shall be bound by the Laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws provisions) and by the terms and conditions of this Agreement setting forth the rights and
+responsibilities of the Parties. The decision of the arbitration panel shall be accompanied by a written opinion setting forth the factual and legal bases for the award. The arbitrators shall issue such written decision within thirty (30) days
+of the conclusion of the arbitration hearing. The arbitrators appointed hereunder shall not have the power to award punitive damages. Service of a petition to confirm the arbitration award may be made by United States mail, postage prepaid, or by
+any regularly conducted commercial express mail service, to the attorney for the Party or, if not so represented, to the Party at the address set forth herein, or to the Party’s last known business address. The prevailing Party in any action
+related to or arising under this Agreement shall be entitled to reasonable attorneys’ fees and costs.
13.3.1 For any
+Dispute in which the amount in controversy is at least One Million Dollars ($1,000,000), the following additional procedures apply:
(a) a certified court reporter shall transcribe the arbitration hearings; The Parties initially split the cost of the reporter, but such costs shall ultimately be awarded to the Party prevailing in the
+arbitration proceeding; and
(b) either Party may take an appeal from the final decision by making a written demand within
+twenty (20) days of the award.
13.3.2 Any such appeal shall be conducted as follows:
+(a) such appeals are limited to issues of Law (i.e., the original award (1) contains material errors of Law such that the original
+award is not founded on any appropriate legal basis; (2) is based on factual findings clearly unsupported by the record; or (3) is subject to one or more grounds set forth in Section 10 of the Federal Arbitration Act or 42 Pa. C.S.A.
+§7341 for vacating an award);
(b) the Person hearing the appeal shall be a former federal judge mutually agreed to by
+the Parties or selected through the procedures of the American Arbitration Association. The former judge shall act as the appellate arbitrator;
(c) the submissions on appeal are limited to (1) the record of the arbitration, (2) a 30-page brief by the appellant, (3) a 30-page brief by the appellee and (4) a 10-page response by
+the appellant. The appellate arbitrator will set the dates for submission of the briefs. Oral argument may be heard at the discretion of the appellate arbitrator;
+
13
+
+
+
+
+
+
+ (d) the appellate arbitrator shall render a written decision within sixty (60) days of
+the final submission;
(e) during the pendency of the arbitration appeal, the Parties agree to suspend any running of the
+time to seek enforcement of the original award. The Parties also agree to waive any appeal to state or federal courts based on the grounds set forth in Section 10 of the Federal Arbitration Act for vacating an award and 42 Pa. C.S.A. §
+7341;
(f) the appellate arbitrator must award costs and attorneys’ fees to the prevailing Party; and
+(g) the decision of the appellate arbitrator shall be final.
13.4 Continued Performance: Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of the other
+Party. Accordingly, in the event of a Dispute, each Party shall continue to so perform all of its obligations under this Agreement, in good faith during the resolution of such Dispute unless and until (a) authority to stop doing so is granted
+or conferred by a court of competent jurisdiction or (b) this Agreement is terminated in accordance with the provisions hereof.
13.5 Equitable Relief: Notwithstanding anything contained in this Agreement to the contrary, the Parties will be entitled to seek injunctive relief, specific performance or other equitable relief
+whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction. Without limiting the generality of the foregoing, (a) Evolent agrees that there would be irreparable harm to ABCO in the
+event of any such breach by Evolent of Section 6.2 and ABCO shall be entitled to (i) injunctive relief to prevent breaches of Section 6.2, (ii) specific performance of this Agreement, and (iii) any other remedies provided by
+Law or equity, including without limitation an award for damages, and (b) ABCO agrees that there would be irreparable harm to Evolent in the event of any such breach by ABCO of Section 6.1.1, and Evolent shall be entitled to
+(i) injunctive relief to prevent breaches of Section 6.1.1, (ii) specific performance of this Agreement, and (iii) any other remedies provided by Law or equity, including without limitation an award for damages.
+14. MISCELLANEOUS PROVISIONS.
14.1 Good Faith and Mutual Agreement: Unless otherwise expressly stated in such provision, if a provision in this Agreement calls for the consent of a Party or the mutual agreement of the Parties,
+the Parties agree that each will act in good faith, will not unreasonably withhold their consent and that deference shall be given to the other Party’s reasonable business requirements, and the requirements of the Parties’ respective
+regulators and internal controls procedures.
14.2 Independent Contractor: The relationship of ABCO to Evolent shall at
+all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture, or employment between the Parties. Each Party shall have the sole and exclusive control over the
+labor and employee relations policies and policies relating
+
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+
+
+
+
+
+
+to wages, hours, working conditions, benefits, or other conditions of its personnel and shall be responsible and liable for the acts and omissions of its employees, agents and contractors.
+
14.3 Assignability: Evolent has entered into this Agreement because of the expertise of ABCO, and ABCO understands
+that the obligations of ABCO are personal to ABCO and may not be assigned to any other company, partnership or individual without the express written consent of Evolent; provided, however, that no consent shall be required if an assignment is made
+in connection with a sale of all or substantially all of ABCO’s assets or stock, or in connection with a merger or Change of Control. Evolent may assign this Agreement (including the licenses granted pursuant to this Agreement) to any Affiliate
+of Evolent as part of an internal reorganization or in connection with a sale of substantially all of its assets or stock, or in connection with a merger or Change of Control.
14.4 Governing Law and Jurisdiction: This Agreement shall be governed by and construed and enforced in accordance with the Laws of the Commonwealth of Pennsylvania, without regard to that state or
+any other state’s conflicts of law rules. Each Party irrevocably consents to the personal jurisdiction of the state and federal courts located in Wilmington, Delaware for any suit or action arising from or related to this Agreement.
+14.5 Force Majeure: Neither Party shall be deemed in default of this Agreement to the extent that performance of their obligations
+or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, or any other cause beyond the control of such Party, provided that such Party gives the other Party written
+notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof, and uses its commercially reasonable efforts to cure any such breach.
14.6 Entire Agreement: This Agreement and its exhibits, schedules, and attachments constitute the entire understanding between the Parties with respect to the subject matter hereof and supersede
+all prior written or oral representations with respect to the subject matter hereof. This Agreement may not be modified, amended, or otherwise changed in any manner except by a written instrument executed by the Party against whom enforcement is
+sought.
14.7 Cumulative Remedies: Except as expressly provided in this Agreement, (a) remedies for breach are
+cumulative and may be exercised separately or concurrently, (b) the exercise of one remedy is not an election of that remedy to the exclusion of others, and (c) the provision for any remedy in this Agreement shall not affect remedies
+otherwise available at Law or in equity.
14.8 No Third Party Beneficiaries: The Parties do not intend that this
+Agreement creates any right or cause of action in or on behalf of any Person other than Evolent and ABCO.
14.9
+Headings: Section headings have been included in this Agreement merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement.
+14.10 Binding Effect: The covenants and conditions contained herein will apply to and bind the successors, representatives, and
+permitted assigns of the Parties.
14.11 Expenses: Each Party shall be responsible for its own legal, accounting and
+other transaction costs relating to the transactions contemplated in this Agreement.
+
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+
+
+ 14.12 Notices: All notices required to be given hereunder shall be in writing and
+given hereunder, as elected by the Party giving notice, as follows: (a) by personal delivery, (b) sent by overnight courier with confirmation of receipt, or (c) dispatched by certified or registered mail, return receipt requested,
+postage prepaid, addressed to the Parties as follows.
+
+
+
+
+ |
+ |
+ |
+
+
+
+ |
+ |
+
+| If to Evolent: |
+ |
+ Evolent, Inc. 800 N. Glebe
+Road, Suite 500 Arlington, VA 22203
+Attention: President |
+
+ |
+ |
+
+ |
+ |
+ Morgan Lewis & Bockius, LLP 225 Franklin Street Boston, MA 02110 Attention: Mark B. Stein, Esq. Fax No.: (617) 341-7701 |
+
+ |
+ |
+
+| If to ABCO: |
+ |
+ The Advisory Board Company
+2445 M St. NW Washington, DC 20037
+Attention: General Counsel |
+
Notice shall be deemed given (a) on the date of receipt if delivered personally; (b) on the business day
+following delivery of such notice to the overnight courier; or (c) three (3) business days after deposit in the mail in accordance with the foregoing. Either Party may change the address to which to send notices by notifying the other
+Party of such change of address in writing in accordance with the foregoing.
14.13 Press Releases: No press releases
+or other public announcements concerning the transactions contemplated by this Agreement shall be made by ABCO or Evolent without the prior written consent of both Parties; provided, however, that nothing herein shall prevent a Party from supplying
+such information or making statements as required by governmental authority or in order for a Party to satisfy its legal obligations (prompt notice of which shall in any such case be given to the other Party).
+14.14 Severability: Any terms or provisions of this Agreement that shall prove to be invalid, void or illegal shall in no way
+affect, impair, or invalidate any other term or provision herein and such remaining terms and provisions shall remain in full force and effect provided that its general purposes are still reasonably capable of being effected. All such terms or
+provisions which are determined by a court of competent jurisdiction or other dispute resolution proceeding to be invalid, void or illegal shall be construed and limited so as to allow the maximum effect permissible by Law.
+14.15 Waiver: The waiver by either Party to this Agreement of any one or more defaults, if any, on the part of the other, shall
+not be construed to operate as a waiver of any other or future defaults under the same or different terms, conditions or covenants contained in this Agreement.
+
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+
+
+
+
+
+ IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date
+first written above.
+
+
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+
+| THE ADVISORY BOARD COMPANY |
+ |
+ |
+ |
+EVOLENT HEALTH, INC. |
+
+ |
+ |
+ |
+
+| /s/ Evan Farber |
+ |
+ |
+ |
+ |
+
+ |
+ |
+ |
+ |
+ |
+
+| By: |
+ |
+ Evan Farber |
+ |
+ |
+ |
+By: |
+ |
+ |
+
+ |
+ |
+ |
+ |
+ |
+
+| Its: |
+ |
+ General Counsel |
+ |
+ |
+ |
+Its: |
+ |
+ |
+
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
+
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+
+
+
+
+
+ IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date
+first written above.
+
+
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+
+| THE ADVISORY BOARD COMPANY |
+ |
+ |
+ |
+EVOLENT HEALTH, INC. |
+
+ |
+ |
+ |
+
+| |
+ |
+ |
+ |
+ /s/ Frank Williams |
+
+ |
+ |
+ |
+ |
+ |
+
+| By: |
+ |
+ |
+ |
+ |
+ |
+By: |
+ |
+ Frank Williams |
+
+ |
+ |
+ |
+ |
+ |
+
+| Its: |
+ |
+ |
+ |
+ |
+ |
+Its: |
+ |
+ CEO |
+
[Signature Page to Amended and Restated Services, Reseller and Non-Competition Agreement]
+
\ No newline at end of file
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new file mode 100644
index 0000000000000000000000000000000000000000..057b6405accbc2ba5bccd553994b02baafad1b62
--- /dev/null
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@@ -0,0 +1,458 @@
+
+
+
+
+
+
+
+
+
+
+Exhibit 10.3
+
+
+
+Non-Competition
+agreement
+
+
+
+WHEREAS, Alliqua
+BioMedical, Inc. (“Alliqua”), Alliqua Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of
+Alliqua (“Parent” and together with Alliqua, the “Alliqua Entities”), Chesapeake Merger Corp.,
+a Delaware corporation and a wholly-owned subsidiary of Parent, and Soluble Systems, LLC, a Virginia limited liability company
+(the “Company”), have entered into that certain Contribution Agreement and Plan of Merger, dated as of October
+5, 2016 (the “Contribution and Merger Agreement”);
+
+
+
+WHEREAS, [●]
+(the “Restricted Party”) acknowledges that a material aspect of the Alliqua Entities’ decision to enter
+into the Contribution and Merger Agreement is the value and maintenance of the reputation and goodwill of the Company;
+
+
+
+WHEREAS, as
+a material inducement to the Alliqua Entities to enter into the Contribution and Merger Agreement and consummate the transactions
+contemplated thereby, the Company has agreed that the Restricted Party shall execute this Agreement; and
+
+
+
+WHEREAS, the
+Contribution and Merger Agreement contemplates that the Restricted Party shall execute this Agreement;
+
+
+
+NOW, THEREFORE,
+in consideration of the recitals and the covenants, representations, warranties, conditions and agreement hereinafter expressed,
+the Alliqua Entities and the Restricted Party agree as follows:
+
+
+
+1. Effective
+Date. Subject to the Closing of the transactions contemplated by the Contribution
+and Merger Agreement, this Agreement shall be effective as of and on the Closing Date (the “Effective Date”).
+
+
+
+2. Definitions.
+For all purposes under this Agreement, the following terms shall have the meaning set forth below. Any terms used but not otherwise
+defined herein shall have the respective meanings ascribed to them in the Contribution and Merger Agreement:
+
+
+
+(a) “Confidential
+Information” includes any trade secrets or confidential or proprietary information of the Company, its Affiliates,
+and its and their respective predecessors and successors, including, but not limited to, the following: methods of operation, products,
+inventions, services, processes, equipment, know-how, technology, technical data, policies, strategies, designs, formulas, developmental
+or experimental work, improvements, discoveries, research, plans for research or future products and services, database schemas
+or tables, software, development tools or techniques, training procedures, training techniques, training manuals, business information,
+marketing and sales methods, plans and strategies, competitors, markets, market surveys, techniques, production processes, infrastructure,
+business plans, distribution and installation plans, processes and strategies, methodologies, budgets, financial data and information,
+customer and client information, prices and costs, fees, customer and client lists and profiles, employee, customer and client
+nonpublic personal information, supplier lists, business records, product construction, product specifications, audit processes,
+pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans, reports,
+recommendations and conclusions, information regarding the skills and compensation of employees and contractors, and other business
+information disclosed to the Restricted Party by the Company, either directly or indirectly, in writing, orally, or by drawings
+or observation. “Confidential Information” does not include, and there shall be no obligation hereunder
+with respect to, information that: (i) is generally available to the public on the date of this Agreement; (ii) becomes generally
+available to the public other than as a result of a disclosure not otherwise permissible hereunder, (iii) was available, or becomes
+available, to the Restricted Party from a source other than the Alliqua Entities or its Representatives, provided that such source,
+to the Restricted Party’s actual knowledge after reasonable inquiry, was lawfully permitted to disclose such information;
+or (iv) has been independently acquired or developed by the Restricted Party without violating any of the Restricted Party’s
+obligations under this Agreement or otherwise owed to the Alliqua Entities or its Representatives.
+
+
+
+
+
+
+
+
+
+
+
+(b) “Restricted
+Business” shall mean the business of providing a skin substitute for chronic wound care.
+
+
+
+(c) “Restricted
+Period” shall mean a period commencing from the Effective Date until the two (2)-year anniversary of the Effective
+Date.
+
+
+
+
+
+
+
+(a) This
+Agreement is entered into in connection with the transactions contemplated by the Contribution and Merger Agreement. The parties
+acknowledge that it would be detrimental to the Alliqua Entities if the Restricted Party were to compete with the Alliqua Entities
+any time during the Restricted Period or to solicit customers, clients, employees or contractors of the Company or Alliqua Entities
+at any time during the Restricted Period.
+
+
+
+(b) The
+Restricted Party recognizes that the covenants set forth herein are an essential part of the transactions contemplated by the Contribution
+and Merger Agreement and that but for the agreement of the Restricted Party to comply with such covenants, the Alliqua Entities
+would not enter into the Contribution and Merger Agreement. The Restricted Party acknowledges and agrees that the covenants set
+forth herein are necessary to protect the legitimate business interests of the Alliqua Entities acquired pursuant to the Contribution
+and Merger Agreement. In addition, the Restricted Party acknowledges that the consideration paid pursuant to the terms of the Contribution
+and Merger Agreement is paid in part as consideration for customer and client contacts, marketplace reputation and goodwill developed
+by the Restricted Party for the Company and the covenants set forth herein are necessary for the Alliqua Entities to receive the
+full benefit of the Contribution and Merger Agreement.
+
+
+
+(c) The
+Restricted Party hereby acknowledges the broad territorial scope of the covenants contained in this Agreement, but acknowledges
+and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities
+prohibited, (ii) the Company’s products and services are marketed on a wide geographic scope, (iii) the Confidential
+Information of the Company to which the Restricted Party had, has or will have access, (iv) the fact that a business that
+competes with Alliqua Entities could greatly benefit if it were to obtain the Confidential Information of the Company, (v) the
+Alliqua Entities acquisition of the Company Intellectual Property and goodwill of the Company pursuant to the transactions contemplated
+by the Contribution and Merger Agreement, (vi) the fact that the Restricted Party would have an unfair competitive advantage
+if the Restricted Party were allowed to engage in the competitive activities prohibited by this Agreement in light of the Confidential
+Information and/or goodwill that the Restricted Party has acquired, and (vii) the provisions of this Agreement are reasonable
+and necessary to protect and preserve the Alliqua Entities’ interests in and right to use and operate the Company’s
+business from and after Closing.
+
+
+
+
+
+ | NON-COMPETITION AGREEMENT | Page 2 |
+
+4. Non-Disclosure.
+The Restricted Party agrees not to dispute, contest, or deny any ownership rights of the Alliqua Entities of the Confidential Information
+or the Company Intellectual Property. The Restricted Party agrees to preserve and protect the confidentiality of all Confidential
+Information. The Restricted Party shall not directly or indirectly, disclose to any unauthorized person or use for the Restricted
+Party’s own account any Confidential Information. The Restricted Party shall hold all Confidential Information in the strictest
+confidence, and take all commercially reasonable precautions to prevent its inadvertent disclosure to any unauthorized person.
+The Restricted Party shall not, directly or indirectly, other than on behalf of the Alliqua Entities, utilize, disclose or make
+available to any other person or entity, any of the Confidential Information. Notwithstanding anything herein to the contrary,
+the covenants in this Section 4 shall not apply to Confidential Information that the Restricted Party is required to disclose by
+applicable Law, after providing written notice to the Alliqua Entities before producing the information, which notice shall be
+given as soon as practicable, so that the Alliqua Entities, at their sole expense, may seek a protective order or other appropriate
+remedy.
+
+
+
+5. Non-Competition
+and Non-Solicitation. In exchange for the consideration contemplated under the Contribution
+and Merger Agreement and the consummation of the other transactions contemplated by the Contribution and Merger Agreement:
+
+
+
+(a) During
+the Restricted Period, the Restricted Party shall not, directly or indirectly, own, manage, engage in, operate, control, work for,
+consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate
+in the ownership, management, operation or control of, any business, whether in corporate, proprietorship or partnership form or
+otherwise, engage in the Restricted Business, other than on behalf of the Alliqua Entities; provided, that the restrictions
+contained in this Section 5(a) shall not restrict the acquisition by the Restricted Party, directly or indirectly,
+of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business.
+
+
+
+(b) During
+the Restricted Period, the Restricted Party shall not, directly or indirectly, solicit, induce, recruit or encourage anyone who
+is a consultant or employee of the Company or the Alliqua Entities to terminate his or her employment or consulting relationship
+with the Company or the Alliqua Entities, or without the consent of the Alliqua Entities, hire, retain or engage any such person
+for the Restricted Party or for another Person or entity. Notwithstanding anything herein to the contrary, nothing in this Section
+5(b) shall prevent the Restricted Party or any of its Affiliates from hiring, soliciting, inducing, recruiting or encouraging (i)
+any employee or consultant whose employment or consultancy has been terminated by the Company or the Alliqua Entities; or (ii)
+twelve (12) months after the date of termination of employment, any employee or consultant whose employment has been terminated
+by the employee or the consultant.
+
+
+
+(c) During
+the Restricted Period, the Restricted Party shall not, directly or indirectly: (i) solicit business from, interfere with,
+attempt to solicit business from, interfere with, or do business with any actual or prospective customer or client with whom the
+Company or the Alliqua Entities does or has done business (including direct purchasers of the Company’s TheraSkin® product),
+in any case for the purpose of discussing or securing business or contracts related to the Restricted Business, or (ii) attempt
+to influence, encourage, persuade or induce any such actual or prospective customer or client whom the Company or the Alliqua Entities
+does or has done business to reduce the extent of its business dealings with the Alliqua Entities (including direct purchasers
+of the Company’s TheraSkin® product).
+
+
+
+(d) The
+Restricted Party shall not, and shall cause any Affiliates not to, disparage or initiate negative publicity about the Company,
+the Alliqua Entities, or any of their respective employees, agents, business, policies, products, or services.
+
+
+
+(e) If
+the Restricted Party violates any of the restrictions contained in this Article 5, the Restricted Period shall be suspended
+and shall not run in favor of the Restricted Party from the time of commencement of any violation until the time when the Restricted
+Party ceases the violation.
+
+
+
+
+
+ | NON-COMPETITION AGREEMENT | Page 3 |
+
+6. Remedies.
+The Restricted Party acknowledges that the restrictions contained herein, in view of the nature of the Company’s business
+and the businesses of the Alliqua Entities, are reasonable and necessary to protect their legitimate business interests, business
+goodwill and reputation, and that any violation of these restrictions would result in irreparable injury and continuing damage
+to them, and that money damages would not be a sufficient remedy for any such breach or threatened breach. Therefore, the Restricted
+Party agrees that the Alliqua Entities shall be entitled to seek a temporary restraining order and injunctive relief restraining
+the Restricted Party from the commission of any breach or threatened breach of any covenants herein, without the necessity of establishing
+irreparable harm or the posting of a bond, and to recover from the Restricted Party damages incurred, as well as the attorneys’
+fees, costs and expenses related to any breach or threatened breach of this Agreement and enforcement of this Agreement. Nothing
+contained in this Agreement shall be construed as prohibiting the Alliqua Entities from pursuing any other remedies available to
+them for any breach or threatened breach, including, without limitation, the recovery of money damages, attorneys’ fees,
+and costs. The existence of any claim or cause of action by the Restricted Party, whether predicated on this Agreement or otherwise,
+shall not constitute a defense to the enforcement of the restrictive covenants contained herein, or preclude injunctive relief.
+
+
+
+
+7. Assignment;
+Binding Agreement. This Agreement shall be binding upon and inure to the benefit of
+the parties hereto and their respective heirs, successors and permitted assigns. The Restricted Party may not assign this Agreement
+to a third party. The Alliqua Entities may assign their rights, together with their obligations hereunder, to any Affiliates and/or
+subsidiary or any successor thereto or any purchaser of substantially all of their assets.
+
+
+
+8. Reformation.
+The Restricted Party agrees that in the event any of the covenants contained herein shall be held by any court to be effective
+in any particular area or jurisdiction only if said covenant is modified to limit its duration or scope, then the court shall have
+such authority to so reform the covenant and the parties hereto shall consider such covenant(s) and/or other provisions to be amended
+and modified with respect to that particular area or jurisdiction so as to comply with the order of any such court and, as to all
+other jurisdictions, the covenants contained herein shall remain in full force and effect as originally written.
+
+
+
+9. Partial
+Invalidity. In the event any court of competent jurisdiction holds any provision of
+this Agreement to be invalid or unenforceable, such invalid or unenforceable portion(s) shall be limited or excluded from this
+Agreement to the minimum extent required, and the remaining provisions shall not be affected or invalidated and shall remain in
+full force and effect.
+
+
+
+10. Waiver.
+The rights and remedies of the parties to this Agreement are cumulative and without prejudice to any other rights or remedies under
+applicable law. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement
+will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege
+will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.
+To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged by one
+party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b)
+no waiver that may be given by a party will be applicable, except in the specific instance for which it is given; and (c) no notice
+or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice
+or demand to take further action without notice or demand as provided in this Agreement.
+
+
+
+11. Entire
+Agreement. This Agreement, together with the Contribution and Merger Agreement, constitutes
+the entire agreement between the parties with respect to the subject matter hereof, and fully supersedes all prior and contemporaneous
+negotiations, promises, understandings, representations, writings, discussions and/or agreements between the parties, whether written
+or oral, pertaining to or concerning the subject matter of this Agreement. No oral statements or other prior written material not
+specifically incorporated into this Agreement shall be of any force or effect, and no changes in or additions to this Agreement
+shall be recognized, unless incorporated into this Agreement by written amendment, such amendment to become effective on the date
+stipulated in it. Any amendment to this Agreement must be signed by all parties to this Agreement.
+
+
+
+
+
+ | NON-COMPETITION AGREEMENT | Page 4 |
+
+12. Controlling
+Law and Venue. This Agreement shall be governed by and construed under the laws of
+the Commonwealth of Virginia. Venue of any litigation arising from this Agreement shall be in the United States District Court
+for the Eastern District of Virginia, or a state court of competent jurisdiction in Newport News, Virginia. The Restricted Party
+consents to personal jurisdiction of the United States District Court for the Eastern District of Virginia, or a state court of
+competent jurisdiction in Newport News, Virginia for any dispute relating to or arising out of this Agreement, and the Restricted
+Party agrees that the Restricted Party shall not challenge personal or subject matter jurisdiction in such courts.
+
+
+
+13. Counterparts.
+This Agreement may be executed by the parties in multiple counterparts, whether or not all signatories appear on these counterparts
+(including via electronic signatures and exchange of PDF documents via email), each of which shall be deemed an original, but all
+of which together shall constitute one and the same instrument.
+
+
+
+{Remainder of Page Intentionally Left
+Blank}
+
+
+
+
+
+ | NON-COMPETITION AGREEMENT | Page 5 |
+
+IN WITNESS WHEREOF,
+the parties have executed this Agreement, effective as of the Effective Date and subject to the consummation of the transactions
+contemplated by the Contribution and Merger Agreement.
+
+
+
+
+
+ | The REstricted Party: |
+ Signature: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ Printed Name: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ Date: |
+ |
+
+ | |
+ |
+ |
+
+ | THE COMPANIES: |
+ ALLIQUA Holdings, Inc |
+
+ | |
+ |
+ |
+
+ | |
+ Signature: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ Name: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ Title: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ Date: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ ALLIQUA BIOMEDICAL, INC. |
+
+ | |
+ |
+ |
+
+ | |
+ Signature: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ Name: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ Title: |
+ |
+
+ | |
+ |
+ |
+
+ | |
+ Date: |
+ |
+
+
+
+Signature Page to Non-Competition and
+Non-Solicitation Agreement
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+
\ No newline at end of file
diff --git a/raw/1693664_0001193125-18-171470_d426098dex99d3.htm b/raw/1693664_0001193125-18-171470_d426098dex99d3.htm
new file mode 100644
index 0000000000000000000000000000000000000000..97703a8f39abb504443622c0c1e79e894b7d845e
--- /dev/null
+++ b/raw/1693664_0001193125-18-171470_d426098dex99d3.htm
@@ -0,0 +1,251 @@
+
+Exhibit (d)(3)
+
+
+
+ Exhibit (d)(3)
+NON-DISCLOSURE AGREEMENT
+This NON-DISCLOSURE AGREEMENT
+(“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a Delaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and
+with Seller referred to collectively as the “Parties” and individually as a “Party”).
In order to
+facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity interests in Seller (a “Transaction”), each Party has either requested or may request access
+to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the
+“Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and
+disclosure of such information and regarding various related matters.
The Parties, intending to be legally bound, acknowledge and agree
+as follows:
1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s
+Representatives (as defined in Section 13 below) will, at any time, directly or indirectly:
(a) make use of any of the
+Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of considering, evaluating and negotiating a Transaction between the Parties; or
+(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in
+Section 13 below).
The Recipient will be liable and responsible for any breach of this Agreement by any of its
+Representatives and for any other action or conduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all reasonable actions necessary to restrain its
+Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.
2. Provider
+Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the
+“Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider in connection with a Transaction without the prior
+written authorization of the Provider Contact Person.
3. No Representations by Provider. Neither the Provider nor any of the
+Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential
+Information of the Provider previously furnished.
+
+
+
+
+
+
+
+Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s
+Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under
+United States federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and
+warranties that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.
+
4. Permitted Disclosures.
+
(a) Notwithstanding the limitations set forth in Section 1 above:
+
(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the
+Recipient’s disclosure thereof;
(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the
+Provider to any Representative of the Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a Transaction between the Parties,
+and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and
+
(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by
+applicable law or governmental regulation or by valid legal process or stock exchange rule.
(b) If the Provider delivers to the
+Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding
+anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient (any such other
+Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or permitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s
+receipt of the Permitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.
(c) If the
+Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will
+promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will
+
+
-2-
+
+
+
+
+
+cooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such protective order or other remedy. If
+the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such
+Confidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it
+is disclosed.
5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s
+Representatives will promptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in
+lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such Confidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required
+to return or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the delivery to the Provider, the destruction by the
+Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations
+under this Agreement with respect to such Confidential Information.
6. Limitation on Soliciting Employees. During the 12 month
+period commencing on the date of this Agreement, each Party agrees that neither it nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for employment
+any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect subsidiaries) came into contact in connection with a possible Transaction; provided, however, that
+this Section 6 will not prevent either Party or its direct or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or engaging search firms, provided that that
+such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.
7. Standstill
+Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any of Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner,
+directly or indirectly:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any
+securities of Seller or any securities of any subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer, merger, business combination,
+recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of Seller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or
+(iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any subsidiary of
+Seller;
+
-3-
+
+
+
+
+
+ (b) form, join or participate in a “group” (as defined in the Securities
+Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;
+(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or
+any subsidiary of Seller;
(d) take any action that might require Seller to make a public announcement regarding any of the types
+of matters set forth in clause (a) of this Section 7;
(e) agree or offer to take, or encourage or propose
+(publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this Section 7;
+(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of
+this Section 7;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating
+to any of the foregoing; or
(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider
+the amendment or waiver of any provision set forth in this Section 7;
provided that Buyer shall not be prohibited from making or discussing
+any offers in a confidential, non-public manner that does not violate sub-clause (d) above regarding the Transaction directly to or with the management or the Board
+of Directors of Seller, or their designated Representatives (provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).
+The standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions
+contemplated by a Definitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision, (1) any third party unrelated to Buyer has made any public
+announcement of its intent to commence a tender offer or exchange offer for more than 50% of the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions
+(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated, would result in a sale of more than 50% of the capital stock of Seller or a sale of all or
+substantially all of the assets of Seller, or (iii) any third party unrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the election of, or enters into
+an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of Directors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The
+standstill provisions of this Section 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in Section 7(a) above; provided, however, that
+the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.
+
-4-
+
+
+
+
+
+ 8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive
+Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the
+other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free
+to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising
+out of or relating to any transaction or proposed transaction involving the other Party.
9. No Waiver. No failure or delay by
+either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future
+exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties
+and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party
+acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.
+Accordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives
+(without the need for posting a bond or providing other security). The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies
+available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement
+will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without
+giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or
+proceeding arising out of or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or
+federal court located in the State of Delaware; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out
+of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.
+12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed
+to include only the following:
+
-5-
+
+
+
+
+
+ (a) any information (including any technology,
+know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any
+subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been made available to the Recipient or any
+Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;
(b) any memorandum,
+analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based
+directly or indirectly upon any information of the type referred to in clause (a) of this Section 12;
(c) the
+existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been made available to the Recipient or any of its Representatives; and
+(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the
+proposed terms of any such transaction.
However, the Provider’s “Confidential Information” will not be deemed to include:
+
(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of
+any of such information by the Recipient or by any of the Recipient’s Representatives;
(ii) any information that was in the
+Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such
+information was not and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person with respect to any of such information;
+(iii) any information that becomes available to the Recipient on a non-confidential basis from a
+source other than the Provider or any of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other
+Person with respect to any of such information; or
(iv) any information that is developed by or on behalf of the Recipient independently
+of the disclosure of Confidential Information and without reference to or use of Confidential Information.
13. Miscellaneous.
+(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes
+(i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates.
+
-6-
+
+
+
+
+
+ (b) The term “Person,” as used in this Agreement, will be broadly interpreted to
+include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(c) Any term or
+provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or
+provision in any other situation or in any other jurisdiction.
(d) By making Confidential Information or other information
+available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,
+trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of
+the Provider.
(e) To the extent that any Confidential Information includes materials or other information that may be subject to
+the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute,
+(i) Provider, or the applicable direct or indirect subsidiary of Provider, is not waiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or doctrines
+as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and (ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect
+to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended
+to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or
+other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection
+thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.
+(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and
+supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.
(g) This Agreement will
+terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any time upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the
+
+
-7-
+
+
+
+
+
+
+
+
+obligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of three years from the effective date of this
+Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive indefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under
+Section 7 of this Agreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and effect and survive any termination of this Agreement.
+
(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any
+products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
+
(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related
+hereto, including legal notices, shall be in the English language only.
[Signature Page Next]
+
-8-
+
+
+
+
+
+
+
+
+
+ |
+ |
+ |
+
+
+
+| ARMO BIOSCIENCES, INC. |
+ |
+ELI LILLY AND COMPANY |
+
+ |
+ |
+
+| By: /s/ Peter Van Vlasselaer |
+ |
+By: /s/ Timothy C. Dolan |
+
+ |
+ |
+
+| Title:
+CEO
+ |
+ |
+Title: V.P., Business Development |
+
+ |
+ |
+
+| Address: 575 Chesapeake Dr. |
+ |
+Address: Lilly Corporate Center |
+
+ |
+ |
+
+| Redwood City, CA 94063 |
+ |
+ Indianapolis,
+IN |
+
+
\ No newline at end of file
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diff --git a/raw/24104_0000024104-96-000010_document_3.txt b/raw/24104_0000024104-96-000010_document_3.txt
new file mode 100644
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+NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
+
+
+
+ THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
+("Agreement") is made this 21st day of October, 1996, by Valco
+Inc., a Colorado corporation ("Valco") and Thomas E. Brubaker
+("Brubaker"), in favor of Continental Materials Corporation, a
+Delaware corporation ("CMC").
+
+
+ Preliminary Recitals:
+
+ WHEREAS, that certain Acquisition Agreement dated the date
+hereof (the "Acquisition Agreement") by Valco and CMC, provides
+for the acquisition by CMC of certain rights, properties, assets
+(including a partnership interest) owned or held by Valco;
+
+ WHEREAS, that certain Fee Sand And Gravel Lease dated the
+date hereof (the "Lease") between Valco and CMC provides for the
+lease by Valco to CMC of certain property containing sand and
+gravel deposits in Pueblo County, Colorado;
+
+ WHEREAS, Brubaker is presently President and a stockholder
+of Valco;
+
+ NOW, THEREFORE, in consideration of CMC's agreements and
+covenants contained in the Acquisition Agreement and the Lease
+and to induce CMC to consummate the purchase and lease provided
+for in the Acquisition Agreement and the Lease, Valco and
+Brubaker hereby covenant and agree with CMC as follows:
+
+1. Preamble; Preliminary Recitals
+
+ The preamble and preliminary recitals set forth above are by
+this reference incorporated in and made a part of this Agreement.
+
+2. Non-competition
+
+ (a) Without the prior written consent of CMC (which may be
+withheld in CMC's sole discretion), for a period of ten (10)
+years from and after the date hereof, neither Valco nor Brubaker
+shall, directly or indirectly, whether as a stockholder,
+individual, partner, agent, representative, employee, employer,
+director, officer, principal, consultant, advisor, or independent
+contractor, or through any of the foregoing, or in any other
+relation or capacity whatsoever: (I) engage in the business
+relating to sand and gravel mining or sales of ready mix
+concrete, asphalt and construction aggregates, in Pueblo and/or
+El Paso Counties, Colorado; (ii) operate or own a concrete batch
+plant, aggregates operation or asphalt plant in Teller County,
+Colorado; or (iii) except to Valco's present customers and
+prospective customers in similar businesses, make any sales to
+any customers in Teller County, Colorado.
+
+
+ (b) Without the prior written consent of CMC (which may be
+withheld in CMC's sole discretion), for a period of two (2) years
+from and after the date hereof, neither Valco nor Brubaker shall,
+directly or indirectly, whether as a stockholder, individual,
+partner, agent, representative, employee, employer, director,
+officer, principal, consultant, advisor, or independent
+contractor, or through any of the foregoing, or in any other
+relation or capacity whatsoever, solicit employment of any of
+Valco's current or former Pueblo area employees who are retained
+by CMC or any of its subsidiaries in connection with the Pueblo
+operations, or encourage any such employees to leave the employ
+of CMC or any of its subsidiaries.
+
+3. Non-disclosure
+
+ (a) Except as provided in Subsection (b) below, each of
+Valco and Brubaker agrees that, for a period of ten (10) years
+from and after the date hereof, all information previously or
+hereafter disclosed to any of them by CMC in connection with the
+transactions contemplated by the Acquisition Agreement and Lease
+and information relating to Valco's (after the date hereof CMC's)
+Pueblo operations is confidential (collectively, "Confidential
+Information") and shall be held in strict confidence and not
+disclosed to any person or entity.
+
+ (b) Valco and Brubaker shall have no requirement to keep
+information confidential, and no such information shall be
+considered Confidential Information, to the extent any of the
+following applies: (I) the information was within the public
+domain at the time it was first known or provided to Valco and
+Brubaker; (ii) the information was published or otherwise became
+part of the public domain after it was first known or provided to
+Valco and Brubaker through no fault of either of them or their
+respective directors, officers, agents employees or affiliates;
+or (iii) the information is required to be disclosed (x) by any
+federal or state law, rule or regulation, (y) by any applicable
+judgment, order or decree of any court, governmental agency or
+arbitrator having or purporting to have jurisdiction in the
+matter, or (z) pursuant to any subpoena or other discovery
+request in any litigation, arbitration or other proceeding;
+provided, however, that if any of Valco and Brubaker proposes to
+disclose the information in accordance with (x), (y) or (z), such
+party shall, to the extent feasible, first give CMC reasonable
+prior notice of the proposed disclosure of any such information
+to the application of such law, rule or regulation, or to appear
+before any court, governmental agency or arbitration order to
+contest the disclosure, as the case may be.
+
+ (c) Valco may disclose, on a need to know basis,
+Confidential Information to directors, officers, employees,
+attorneys and accountants, subject to the last sentence of this
+paragraph (c). With CMC's prior written consent (which will not
+be unreasonably withheld), Valco and Brubaker may disclose, on a
+need to know basis, Confidential Information to consultants,
+advisors and institutional lenders, subject to the last sentence
+of this paragraph (c). Valco also may disclose, on a need to
+know basis, and subject to the last sentence of this paragraph
+(c), to any bona fide acquirer (whether by purchase, exchange,
+merger or otherwise) of the stock, of substantially all of the
+assets of Valco, or of the interest of Valco under the Lease, the
+formula under the Lease for determining the Production Royalty
+Rate, the historical revenues received under the Lease, the total
+tonnage mined (on an aggregate and not product type basis) under
+the Lease and total remaining tons to be mined under the Lease,
+and with CMC's prior written consent (not
+
+
+ 2
+
+
+to be unreasonably withheld), any other information concerning
+the Lease, but CMC may withhold such consent in its sole
+discretion as to such other information if in CMC's sole judgment
+a recipient of such other information is or could be expected
+to become a competitor of CMC in the Pueblo area. In the case of
+any permitted disclosure of Confidential Information under this
+paragraph (c), Valco and Brubaker shall inform such persons of
+the existence of this Agreement and take all reasonable steps to
+ensure that such persons comply with the provisions of this
+Agreement applicable to Valco and Brubaker.
+
+4. Enforcement; Damages; Construction
+
+ (a) Valco's and Brubaker's obligations hereunder shall be
+joint and several as long as Brubaker controls Valco. If
+Brubaker no longer controls Valco, Valco's and Brubaker's
+obligation herein shall be several. Each of Valco and Brubaker
+recognizes that it would be impossible to measure in money all
+the damages which will accrue to CMC by reason of a failure to
+comply with the restrictions and perform the obligations under
+this Agreement. Each of Valco and Brubaker hereby acknowledges
+that CMC would lack an adequate remedy at law and CMC shall, in
+addition to and not in lieu of money damages, be entitled to
+specific performance and injunctive relief against Valco and
+Brubaker in an action or procedure to enforce the provisions
+hereof. Valco and Brubaker shall reimburse CMC for its expenses,
+including reasonable attorney's fees, incurred in connection with
+the enforcement of the provisions hereof relating to a breach of
+this Agreement by Valco or Brubaker.
+
+ (b) No waiver or amendment to this Agreement shall be valid
+unless signed in writing by each of Valco, Brubaker and CMC. If
+any provision of this Agreement shall be invalid or
+unenforceable, in whole or in part, or as applied to any
+circumstance, under the laws of any jurisdiction which may govern
+for such purpose, then such provision shall be deemed to be
+modified or restricted to the extent and in a manner necessary to
+render the same valid and enforceable, either generally or as
+applied to such circumstance, or shall be deemed excised from
+this Agreement, as the case may require, and this Agreement shall
+be construed and enforced to the maximum extent permitted by law,
+as if such provision had been originally incorporated herein as
+so modified or restricted, or as if such provision had not been
+originally incorporated herein, as the case may be.
+
+ (c) This Agreement shall be binding upon, and inure to the
+benefit of, the successors and assigns of each of Valco, Brubaker
+and CMC.
+
+ (d) The captions used in this Agreement are for convenience
+only and shall not be construed to limit or define the scope or
+intent of any paragraph.
+
+ (e) This Agreement has been executed and delivered in
+Colorado Springs, Colorado and the validity and interpretation
+hereof shall be governed in all respects by the laws of the State
+of Colorado.
+
+
+
+
+
+
+ 3
+
+
+ IN WITNESS WHEREOF, each of Valco and Brubaker has executed
+this Agreement on the day and year first above written.
+
+
+ VALCO INC.
+
+ By: ___________________________
+ Name: Thomas E. Brubaker
+ Title: President
+
+
+ THOMAS E. BRUBAKER
+
+ By: ___________________________
+ Thomas E. Brubaker
\ No newline at end of file
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@@ -0,0 +1,573 @@
+
+
+exv10w1
+
+
+
+
+
+
+
+
Exhibit 10.1
+
+
+
+
NONCOMPETITION AND NON-DISCLOSURE AGREEMENT
+
+
+
+
THIS NONCOMPETITION AND NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered
+into as of the 5th day of November, 2007, by and between SPRINGS GLOBAL US, INC., a Delaware
+corporation (“Seller”), and CROWN CRAFTS INFANT PRODUCTS, INC., a Delaware corporation
+(“Purchaser”).
+
+
+
WHEREAS, Seller is engaged in the business of designing, marketing, importing, selling and
+distributing various types of bedding, blanket and bath products and related accessories for the
+Infant and Toddler Retail Market (as defined herein) through Seller’s unincorporated baby product
+line (the “Business”);
+
+
+
WHEREAS, Seller and Purchaser have entered into that certain Asset Purchase Agreement of even
+date herewith, to which a form of this Agreement is attached as Exhibit D, relating to the
+sale to Purchaser of certain of Seller’s assets, rights and properties relating to the Business
+(the “Purchase Agreement”);
+
+
+
WHEREAS, in order to protect the goodwill of the Purchased Assets (as defined in the Purchase
+Agreement) and the Business and the other value to be acquired by Purchaser pursuant to the
+Purchase Agreement for which Purchaser is paying substantial consideration, Purchaser and Seller
+have agreed that Purchaser’s obligation to consummate the transactions contemplated by the Purchase
+Agreement is subject to the condition, among others, that Seller shall have entered into this
+Agreement;
+
+
+
WHEREAS, Purchaser has separately bargained and paid additional consideration for the
+covenants contained herein;
+
+
+
WHEREAS, Seller acknowledges that the provisions of this Agreement are reasonable and
+necessary to protect the legitimate interest of Purchaser and the business and goodwill acquired by
+it pursuant to the Purchase Agreement; and
+
+
+
WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by the
+Purchase Agreement, Seller is willing to enter into this Agreement;
+
+
+
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein,
+the parties agree as follows:
+
+
+
1. Definitions. As used in this Agreement, terms defined in the preamble and
+recitals of this Agreement shall have the meanings set forth therein and the following terms shall
+have the meanings set forth below:
+
+
+
(a) “Competitive Business” shall mean any Person engaged in the business of designing,
+marketing or importing Competitive Products for sale or distribution to the Infant and Toddler
+Retail Market.
+
+
+
+
(b) “Competitive Products” shall mean the type of products designed, marketed,
+imported, and sold or distributed by Seller to the Infant and Toddler Retail Market in connection
+with the operation of the Business prior to the date hereof (which shall not include
+
+
+
+
+
+
+
+
+
+
+
+
any Seller Exclusive Products (as hereinafter defined)) without regard to (i) the prices at
+which such products may be sold, (ii) any tradenames, trademarks, brands, labels, logos or other
+identifying characteristics used in selling such products, or (iii) the types of businesses within
+the Infant and Toddler Retail Market that may purchase such products.
+
+
+
+
(c) “Confidential Information” shall mean all customer and supplier lists, marketing
+arrangements, business plans, projections, financial information, training manuals, pricing
+manuals, product development plans, market strategies, internal performance statistics and other
+competitively sensitive information of Seller used solely in the Business and not generally known
+by the public, whether or not in written or tangible form. Notwithstanding the foregoing, the
+definition of Confidential Information shall not include any of the foregoing items insofar as they
+relate to Seller Exclusive Products.
+
+
+
+
(d) “Infant and Toddler Retail Market” shall mean those retail sales departments
+within retailers which sell products intended for children from ages zero to four years of age.
+
+
+
+
(e) “Permitted Activities” shall mean (i) owning not more than 5% of the outstanding
+shares of publicly-held corporations or other entity engaged in a Competitive Business which have
+shares listed on any national or regional securities exchange or registered with the Securities and
+Exchange Commission (or any comparable regulatory body in any foreign jurisdiction) or through the
+automatic quotation system of a registered securities association (any such publicly-held
+corporation or other entity, a “Public Company”); (ii) owning any percentage of the
+outstanding equity of a Person engaged in a Competitive Business where such equity was acquired by
+Seller after the date hereof from a Person that is not an affiliate of Seller (with “affiliate”
+defined as set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act
+of 1934, as amended) and where such Competitive Business’s annual sales of Competitive Products
+into the Protected Market (as hereinafter defined) constitute less than 10% of such Person’s total
+annual sales revenue, but in no event more than $10,000,000.00; (iii) carrying on or transacting
+business with any Competitive Business if such activity does not include the sale or distribution
+of Competitive Products, directly or indirectly, for ultimate purchase by consumers within the
+Protected Market; and (iv) marketing, selling or distributing any Seller Exclusive Products.
+
+
+
+
(f) “Person” shall mean an individual, partnership, corporation, business trust,
+limited liability company, limited liability partnership, joint stock company, trust,
+unincorporated association, joint venture or other entity or a court, administrative agency or
+other federal, state, local, municipal, foreign or other governmental or quasi-governmental
+authority or agency of any nature.
+
+
+
+
(g) “Protected Market” shall mean the United States.
+
+
+
+
(h) “Restricted Period” shall mean the period commencing on the date of this Agreement
+and ending on the date which is four (4) years from the date of this Agreement.
+
+
+
+
2
+
+
+
+
+
+
+
+
+
(i) “Seller Exclusive Products” means any Inventory (as defined in the Purchase
+Agreement) that is not included within the Eligible Inventory (as defined in the Purchase
+Agreement) transferred to Purchaser pursuant to the Purchase Agreement.
+
+
+
+
2. No Competing Business. Seller hereby agrees that, during the Restricted Period,
+except as permitted by Section 5 of this Agreement, it will not, directly or indirectly, own,
+manage, operate, control, invest in or acquire an interest in, or otherwise engage or participate
+in the establishment, management or operation of, any Competitive Business that sells or
+distributes Competitive Products, directly or indirectly, for ultimate purchase by consumers in the
+Protected Market, without regard to whether the Competitive Business has any office, manufacturing
+or other business facilities within the Protected Market.
+
+
+
3. No Interference with the Business. Seller hereby agrees that, during the
+Restricted Period, except as permitted by Section 5 of this Agreement, Seller will not, directly or
+indirectly, solicit, induce or influence any customer, supplier, lender, lessor or any other Person
+that has a business relationship with the Business in the Protected Market, or which had on the
+date of this Agreement a business relationship with the Business in the Protected Market, to
+discontinue or reduce the extent of such relationship with the Business in the Protected Market; it
+being understood that, nothing herein shall restrict Seller from carrying on or transacting
+business with any such Person in respect of any Seller Exclusive Products.
+
+
+
4. No Disclosure of Proprietary Information. Seller hereby agrees that, during the
+Restricted Period, it will not, directly or indirectly, disclose to anyone, or use or otherwise
+exploit for its own benefit or for the benefit of anyone other than Purchaser, any Confidential
+Information, except as permitted by Section 5 of this Agreement. Notwithstanding the foregoing,
+Seller may make disclosure of Confidential Information if Seller reasonably concludes that public
+disclosure of Confidential Information is required by applicable legal requirements and Seller
+(i) gives Purchaser written notice of such proposed disclosure as far in advance of such disclosure
+as is reasonably practicable, (ii) cooperates reasonably with Purchaser in its efforts to protect
+the information from disclosure, including, without limitation, assisting Purchaser in obtaining,
+at Purchaser’s expense, an appropriate protective order or other reliable assurance that
+confidential treatment will be accorded such information, and (iii) limits its disclosure to the
+minimum required by applicable legal requirements unless Purchaser agrees in writing to a greater
+level of disclosure.
+
+
+
5. Permitted Activities. The restrictions set forth in Sections 2, 3 and 4 of this
+Agreement shall not apply to Permitted Activities or to actions taken by Seller to the extent that
+such actions are expressly approved in writing by Purchaser.
+
+
+
6. Representations and Warranties. Seller represents and warrants that this Agreement
+is a legal, valid and binding obligation, enforceable against Seller in accordance with its terms.
+
+
+
7. Waivers. Neither party will be deemed as a consequence of any act, delay, failure,
+omission, forbearance or other indulgences granted from time to time by it, or for any other reason
+(a) to have waived, or to be estopped from exercising, any of its rights or remedies
+
+
+
3
+
+
+
+
+
under this Agreement or (b) to have modified, changed, amended, terminated, rescinded or
+superseded any of the terms of this Agreement.
+
+
+
+
8. Injunctive Relief. Seller acknowledges that (i) any violation of this Agreement
+will result in irreparable injury to Purchaser, (ii) damages at law would not be reasonable or
+adequate compensation to Purchaser for violation of this Agreement, and (iii) Purchaser shall be
+entitled to have the provisions of this Agreement specifically enforced by preliminary and
+permanent injunctive relief without the necessity of proving actual damages and without posting
+bond or other security as well as to an equitable accounting of all earnings, profits and other
+benefits arising out of any such violation.
+
+
+
9. Notices. All notices and other communications hereunder shall be in writing and
+shall be deemed given if (a) delivered by hand, (b) mailed by registered or certified mail (return
+receipt requested), (c) by deposit with a nationally recognized courier for next business day
+delivery, or (d) faxed and immediately confirmed both orally and in writing, to the parties at the
+following addresses (or at such other addresses for a party as shall be specified by like notice)
+and shall be deemed given on the date on which so hand-delivered or so telecommunicated or the next
+business day following deposit with such courier or on the third business day following the date on
+which so mailed, if deposited in a regularly-maintained receptacle for United States mail:
+
+
+
To Seller:
+
+
Springs Global US, Inc.
+205 North White Street
+Fort Mill, South Carolina 29715
+Attn: Mr. Tom O’Connor
+Fax: (803) 547-1688
+
+
+
+
with a copy to (which shall not constitute notice to Seller):
+
+
Springs Global US, Inc.
+205 North White Street
+Fort Mill, South Carolina 29715
+Attn: Legal Department
+Fax: (803) 547-3766
+
+
+
+
To Purchaser:
+
+
Crown Crafts Infant Products, Inc.
+916 S. Burnside Avenue
+Gonzales, Louisiana 70737
+Attn: Mr. E. Randall Chestnut
+Fax: (225) 647-9112
+
+
+
+
4
+
+
+
+
+
+
+
+
+
with a copy to (which shall not constitute notice to Purchaser):
+
+
Rogers & Hardin LLP
+2700 International Tower
+229 Peachtree Street, NE
+Atlanta, Georgia 30303
+Attn: Steven E. Fox, Esq.
+Fax: (404) 525-2224
+
+
+
+
10. Successors in Interest. This Agreement shall be binding upon and shall inure to
+the benefit of the parties hereto and their successors and assigns, and any reference to a party
+hereto shall also be a reference to any such successor or assign.
+
+
+
11. Number; Gender. Whenever the context so requires, the singular number shall
+include the plural and the plural shall include the singular, and the gender of any pronoun shall
+include the other genders.
+
+
+
12. Captions. The titles, captions and table of contents contained in this Agreement
+are inserted herein only as a matter of convenience and for reference and in no way define, limit,
+extend or describe the scope of this Agreement or the intent of any provision hereof. Unless
+otherwise specified to the contrary, all references to Sections are references to Sections of this
+Agreement.
+
+
+
13. Governing Law. This Agreement shall be governed by and construed in accordance
+with the laws of the State of Delaware without regard to principles of conflicts of laws.
+
+
+
14. Waivers and Amendments. Any term or provision of this Agreement may be waived at
+any time by the party that is entitled to the benefits thereof, and any term or provision of this
+Agreement may be amended or supplemented at any time by the mutual consent of the parties hereto,
+except that any waiver of any term or condition, or any amendment or supplementation, of this
+Agreement must be in writing. A waiver of any breach or failure to enforce any of the terms or
+conditions of this Agreement shall not in any way affect, limit or waive a party’s rights hereunder
+at any time to enforce strict compliance thereafter with every term or condition of this Agreement.
+
+
+
15. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes
+all other prior agreements and understandings, both written and oral, among the parties, or any of
+them with respect to the subject matter hereof.
+
+
+
16. Severability. Any provision hereof which is prohibited or unenforceable in any
+jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or
+unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
+unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in
+any other jurisdiction. To the extent permitted by law, the parties hereto waive any provision of
+law which renders any such provision prohibited or unenforceable in any respect. The parties
+acknowledge and agree that in the event that any provision of this Agreement should ever be deemed
+to exceed the time, geographic, product or any other limitations permitted by applicable
+
+
+
5
+
+
+
+
+
law, it is their intent that any invalid, prohibited or unenforceable term or provision herein
+be reformable by the reviewing court to the fullest extent permitted by applicable law.
+
+
+
+
17. Counterparts. This Agreement may be executed in one or more counterparts, all of
+which shall be considered one and the same agreement. Executed counterparts may be delivered by
+facsimile transmission or by other electronic communication.
+
+
+
18. Enforcement of Certain Rights. Nothing expressed or implied in this Agreement is
+intended, or shall be construed, to confer upon or give any Person other than the parties hereto,
+and their successors or assigns, any rights, remedies, obligations or liabilities under or by
+reason of this Agreement, or result in such Person being deemed a third party beneficiary of this
+Agreement.
+
+
+
[Signature page follows.]
+
+
+
+
6
+
+
+
+
+
+
+
+
+
IN WITNESS WHEREOF, Seller and Purchaser have each caused this Agreement to be executed and
+delivered as of the date first written above.
+
+
+
+
+
+ | |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+
+
+ | |
+ |
+ SELLER: |
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+ | |
+ |
+ SPRINGS GLOBAL US, INC. |
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+
+ |
+ |
+ By: |
+ |
+ /s/ Flavio R. Barbosa |
+ |
+ |
+
+
+
+ |
+ |
+ Name:
+ |
+ |
+
+Flavio R. Barbosa
+ |
+ |
+ |
+
+
+
+ |
+ |
+ Title:
+ |
+ |
+
+EVP & CFO
+ |
+ |
+ |
+
+
+
+ |
+ |
+ |
+ |
+
+ |
+ |
+ |
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+ | |
+ |
+ PURCHASER: |
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+ | |
+ |
+ CROWN CRAFTS INFANT PRODUCTS, INC. |
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+
+ |
+ |
+ By: |
+ |
+ /s/ E. Randall Chestnut |
+ |
+ |
+
+
+
+ |
+ |
+ Name:
+ |
+ |
+
+E. Randall Chestnut
+ |
+ |
+ |
+
+
+
+ |
+ |
+ Title:
+ |
+ |
+
+Vice President
+ |
+ |
+ |
+
+
+
+ |
+ |
+ |
+ |
+
+ |
+ |
+ |
+
+
+
+
+
+
+
(Noncompetition and Non-Disclosure Agreement)
+
+
+
+QuickLinks
+ -- Click here to rapidly navigate through this document
+
+Exhibit 99(d)(3)
+
+
+
+
NON-DISCLOSURE AGREEMENT
+
+ This Non-Disclosure Agreement (the "Agreement") is entered into as of July 26, 2002 by and between Big Sky Transportation Company ("Big Sky") and Mesaba Holdings,
+Inc. ("Holdings").
+
+ In
+connection with a potential transaction (the "Transaction") between Holdings and Big Sky, Big Sky has and will furnish to Holdings certain information ("Information") including but
+not limited to financial, marketing and operational information, and such other information necessary for Holdings to evaluate the transaction. The term "Information" shall mean all information that
+Big Sky has furnished or is furnishing to Holdings, whether furnished before or after the date of this Agreement, whether tangible or intangible and in whatever form or medium provided, as well as all
+information generated by Holdings or by its Representatives, as defined below, that contains, reflects or is derived from the furnished information.
+
+ In
+consideration of Big Sky's disclosure to Holdings of the Information, Holdings agrees that it will keep the Information confidential and that the Information will not, without the
+prior written consent of Big Sky, be disclosed by Holdings or by its officers, directors, employees, agents or representatives (collectively, "Representatives"), in any manner whatsoever, in whole or
+in part, and shall not be used by Holdings or by its Representatives, other than in connection with evaluating the Transaction. Moreover, Big Sky agrees to transmit the Information only to such of its
+Representatives who need to know the Information for the sole purpose of assisting Holdings in evaluating the Transaction and who are informed of this Agreement.
+
+ Notwithstanding
+the foregoing, the above restrictions shall not apply to the following:
+
+
+
+- (i)
- Information
+that is publicly available at the time of disclosure (through no act of Holdings of any of its Representatives);
+
- (ii)
- Information
+that is disclosed to Holdings by a third party that did not disclose it in violation of a duty of confidentiality;
+
- (iii)
- Information
+that was known to Holdings before such Information was provided to it or its Representatives by or on behalf of Big Sky;
+
- (iv)
- disclosures
+that are required to be made by Holdings or any of its Representatives under legal process by subpoena or other court order or other
+applicable laws or regulations (provided, however, that Holdings makes reasonable efforts to provide copies of such Information to, or informs Big Sky before disclosure), or that are requested by Big
+Sky.
+
+
+ Without
+the prior written consent of Big Sky, neither Holdings nor its Representatives shall disclose to any person the fact that Holdings has received any Information or that
+discussions or negotiations are taking place concerning the Transaction, including the status thereof. Likewise, without the prior written consent of Holdings, neither Big Sky nor its Representatives
+shall disclose to any person the fact that Holdings has received any Information or that discussions or negotiations are taking place concerning the Transaction, including the status thereof.
+
+ Big
+Sky and Holdings agree that, at the conclusion of their review of the Information, or within three business days of the other's request, all copies of the Information, in any form
+whatsoever, will be delivered by Holdings and its Representatives to Big Sky.
+
+ Neither
+Big Sky nor any of its Representatives has made or makes any representation or warranty as to the accuracy or completeness of the Information. Holdings agrees that neither Big
+Sky nor any of its Representatives shall have any liability to it or to any of its Representatives resulting from the provision or use of the Information.
+
+ Each
+party acknowledges that it has been informed that the other party is a publicly-traded corporation and that the Information and the Transaction must be secured from any use or
+dissemination until such time as proper disclosure can be provided to shareholders and the securities markets in order to protect the interests of shareholders of each party and so that the rules and
+statutes pertaining to information about and trading in publicly held securities can be followed. During
+
+
+
+
+
+
+
+such time as the parties are involved in discussions or negotiations concerning the Transaction and for a period of at least 60 days after conclusion thereof, neither party shall engage in any
+transactions whatsoever regarding the common stock of the other, whether publicly traded or privately held, registered or nonregistered, including, but not limited to, buying, selling, taking or
+granting options in or making or receiving offers or tender offers to buy, sell, trade, or exchange any stock of the other, without the express written consent of the other and without first fully
+complying with all applicable securities laws and regulations and the rules of all exchanges upon which the stock of each respective party is traded, provided however, that the foregoing shall not be
+construed to limit the right of either party to invest in mutual funds or other commercially available investment vehicles that may acquire the stock of the other party.
+
+ Each
+party acknowledges and agrees that in the event of any breach of this Agreement by it, the other would be irreparably and immediately harmed and could not be made whole by monetary
+damages. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled at law or in equity, each party shall be entitled to an injunction of injunctions (without the
+posting of any bond and without proof of actual damages) to prevent breaches or threatened breaches of this Agreement and/or to compel specific performance of this Agreement, and that neither party
+nor any of its Representatives will oppose the granting of such relief.
+
+ No
+failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right,
+power or privilege preclude any other or further exercise thereof.
+
+ Big
+Sky and Holdings agree that, unless and until a definitive agreement between them with respect to the Transaction has been executed and delivered, neither Holdings nor Big Sky will
+be under any legal obligation of any kind whatsoever with respect to the Transaction by virtue of this or any other written or oral expression by either party or by any of their respective
+Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. This Agreement may be modified or waived only by a separate writing by Holdings and Big Sky
+expressly so modifying or waiving such Agreement.
+
+ This
+Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota applicable to contracts between residents of Minnesota that are to be wholly
+performed within such state. Big Sky and Holdings hereby irrevocably and unconditionally waive the right to a jury trial in connection with any claim arising out of related to this Agreement, the
+Information, or the Transaction.
+
+ In
+witness whereof, this Agreement has been executed as of the date first written above.
+
+
+
+
+| |
+ |
+BIG SKY TRANSPORTATION CO. |
+
+
+
+ |
+
|
+
+By: |
+
+/s/ KIM B. CHAMPNEY
|
+
+
+| |
+ |
+Its: |
+President and CEO
|
+
+
+
+ |
+
|
+
MESABA HOLDINGS, INC. |
+
+
+
+ |
+
|
+
+By: |
+
+/s/ ROBERT E. WEIL
|
+
+
+| |
+ |
+Its: |
+Vice President & Chief Financial Officer
|
+
+
+
+
+2
+
+
+
+
+
+
QuickLinks
+NON-DISCLOSURE AGREEMENT
+
+
+
+
\ No newline at end of file
diff --git a/raw/32251_0000950133-99-003991_document_17.txt b/raw/32251_0000950133-99-003991_document_17.txt
new file mode 100644
index 0000000000000000000000000000000000000000..b52d1ffeed03315c46e31fa1d200246d15c04a11
--- /dev/null
+++ b/raw/32251_0000950133-99-003991_document_17.txt
@@ -0,0 +1,195 @@
+ 1
+ Exhibit(c)(5)
+
+ CONFIDENTIAL
+ MUTUAL NON-DISCLOSURE AGREEMENT
+
+ This Agreement is entered into effective as of the 15 day of October, 1999
+by and between SER Systeme AG, a German corporation ("SER") and EIS
+International, Inc., a Delaware corporation ("EIS").
+
+ WHEREAS, in order to enable the parties to evaluate the merits of a
+possible business transaction between them (the "Transaction"), each party may
+furnish to the other certain information.
+
+ NOW, THEREFORE, to induce EIS and SER to disclose such information, the
+parties agree as follows:
+
+ 1. Each party agrees that all information disclosed by a party (the
+"Disclosing Party"), including without limitation information acquired by the
+other party (the "Receiving Party") from Disclosing Party's employees or upon
+inspection of Disclosing Party's property, relating (without limitation) to
+Disclosing Party's products, designs, business opportunities, plans (business,
+marketing or otherwise), strategies, budgets, finance, customer lists,
+contracts, research and development, software programs, trade secrets, know-how,
+techniques, inventions, processes, distribution methods, schematics and
+personnel disclosed to Disclosing Party by third parties, shall be considered
+"Confidential Information".
+
+ 2. Confidential Information shall not include information which recipient
+is able to prove by documentary evidence (a) is now or subsequently becomes
+generally known or available by publication, commercial or otherwise, through no
+fault of the Receiving Party, (b) was known by the recipient at the time of the
+disclosure or was independently developed by the Receiving Party without the use
+of any Confidential Information, or (c) must be disclosed pursuant to applicable
+legal disclosure requirements or legal process. Confidential Information shall
+also not include information that the parties agree in writing may be disclosed
+by Receiving Party.
+
+ 3. The Receiving Party expressly agrees not to use the Confidential
+Information for purposes other than those necessary to consider whether to enter
+into a Transaction and shall strictly limit its disclosure to such of its
+employees, directors and advisors having a need to know such information, which
+parties shall be advised that such information is Confidential Information and
+subject to the terms of this Agreement. Except as set forth herein, the
+Receiving Party shall hold all information received in confidence and not sell,
+assign, transfer, release or otherwise disclose the Confidential Information, or
+material derived therefrom, to any third party, or to its other employees,
+officers, directors, shareholders, agents or consultants. Notwithstanding the
+termination of this Agreement for any reason, the Receiving Party shall not use
+the Confidential Information for purposes of competing with the Disclosing
+Party.
+
+ 1
+
+ 2
+
+
+
+ 4. Except as must be disclosed pursuant to applicable legal disclosure
+requirements or legal process, neither party nor any of its respective
+representatives may, without the prior written consent of the other party,
+disclose to any person (other than to its employees, directors and advisors
+having a need to know such information) that the parties have exchanged
+confidential information, are engaged in negotiations for a Transaction, or the
+proposed terms of a Transaction (collectively, the "Negotiations") until such
+information has been disclosed by an appropriate legal filing and/or press
+release mutually agreed upon by SER and EIS. Each party shall undertake all
+necessary and reasonable steps to ensure that the Negotiations remain secret and
+confidential.
+
+ 5. In the event that the Receiving Party or anyone to whom the Receiving
+Party transmits the Disclosing Party's Confidential Information pursuant to this
+Agreement becomes legally compelled to disclose all or any portion of the
+Disclosing Party's Confidential Information or to disclose the existence of
+Negotiations, the Receiving Party will provide the Disclosing Party with prompt
+notice thereof, so that the Disclosing Party may seek a protective order or
+other appropriate remedy. In the event that such protective order or other
+remedy is not obtained, the Receiving Party or the recipient of such Disclosing
+Party's Confidential Information will furnish only that portion of the
+Disclosing Party's Confidential Information or aspect of the Negotiations which
+is legally required to be disclosed and the Receiving Party, upon the written
+request of the Disclosing Party, will exercise its reasonable efforts to obtain
+reliable assurances that confidential treatment will be afforded such portion of
+the Disclosing Party's Confidential Information.
+
+ 6. The Receiving Party shall immediately notify the Disclosing Party in
+writing of any unauthorized use or disclosure of the Confidential Information or
+the Negotiations, and shall provide a detailed description of the circumstances
+of the disclosure and the parties involved, and shall cooperate in any
+reasonable efforts to limit or respond to such disclosure.
+
+ 7. The Receiving Party agrees that all Confidential Information provided
+by the Disclosing Party shall remain the property of the Disclosing Party and no
+license or other rights in the Confidential Information is granted hereby. The
+Receiving Party will not disclose the existence, content and/or substance of any
+of the Confidential Information to any third party; nor develop, manufacture,
+produce and/or distribute any software product(s) derived from or which
+otherwise use any of the Confidential Information. The Disclosing Party agrees
+to return (and have any third party to who it supplied the Confidential
+Information return) to the Receiving Party, immediately upon notification by the
+Disclosing Party in writing, all Confidential Information, including but not
+limited to all computer programs, documentation, notes, plans, drawings, and
+copies or reproductions thereof, in any form or medium whatsoever, and not to
+retain any copies thereof.
+
+ 8. The Receiving Party will, to the maximum extent permitted by applicable
+law, refrain from disassembling or decompiling software, or otherwise attempting
+to reverse engineer the design and function of any of the Confidential
+Information. The Receiving Party will not remove any copyright notice, trademark
+notice and/or other proprietary legend or indication of confidentiality set
+forth on or contained in any of the Confidential Information.
+
+
+ 2
+
+ 3
+
+
+
+ 9. The parties agree that any product, plan, strategy or other thing or
+concept jointly developed as a result of, or during, the Negotiations, shall be
+the joint property of both parties hereto. Neither party shall use, license or
+otherwise exploit such jointly developed item(s) without the express prior
+written consent of the other party hereto, which consent shall not be
+unreasonably withheld or delayed. Notwithstanding the above, any product, plan,
+strategy or other thing or concept that a party can prove was known by the
+recipient at the time of the development with the other party or was
+independently developed shall not be considered a jointly developed item(s).
+
+ 10. Each party hereby acknowledges that unauthorized disclosure or use of
+Confidential Information or the Negotiations could cause irreparable harm and
+significant injury, the extent of which may be difficult to ascertain.
+Accordingly, each party agrees that each party shall have the right to seek and
+obtain immediate injunctive relief from breaches of this Agreement, in addition
+to any other rights and remedies each party may have.
+
+ 11. Although the Disclosing Party shall endeavor to provide the other
+party with information relevant for an evaluation of a Transaction, the
+Disclosing Party and its advisors have not made, and will not make, any
+representation or warranty, express or implied, as to the accuracy or
+completeness of the information being provided. Any and all such representations
+and warranties shall be only as specifically set forth in a definitive
+agreement, if one is hereafter executed and delivered in connection with a
+Transaction.
+
+ 12. Without the written consent of the other party, neither party nor its
+affiliates shall not solicit for employment, nor shall it employ or retain or
+enter into any contract for the provision of personal services during the two
+(2) year period commencing on the date hereof any person who is employed by the
+other party as of the date hereof.
+
+ 13. The Receiving Party agrees to indemnify and hold the Disclosing Party
+harmless from and against all claims, losses, liabilities, damages, expenses and
+costs (including, without limitation, reasonable fees for attorneys, expert
+witnesses and court costs) which result from a breach or threatened breach of
+this Agreement by the Receiving Party.
+
+ 14. (a) This Agreement shall be governed by and interpreted in accordance
+with the laws of the Commonwealth of Virginia, excluding its choice of law
+rules, and the courts of Fairfax County (if under State law) or the Eastern
+District of Virginia (if under Federal law) shall have exclusive jurisdiction
+and venue of such actions; (b) the prevailing party, as determined by the court,
+in any action between the parties arising from this Agreement shall be entitled
+to recover, in addition to any other relief awarded, its costs and expenses
+incurred in any such proceeding, including reasonable fees for attorneys, expert
+witnesses and court costs; (c) the Receiving Party's rights under this Agreement
+may not be assigned to any third party without the Disclosing Party's prior
+written consent and any attempted or purported assignment of this Agreement
+without such party's consent shall be void; and (d) this Agreement constitutes
+the entire agreement and understanding between the parties with respect to the
+subject matter hereof, and supersedes all prior and contemporaneous
+negotiations, discussions and understandings of the parties.
+
+
+ 3
+ 4
+
+
+
+
+
+ IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
+executed by their duly authorized representatives as of the day and year first
+written above.
+
+SER SYSTEME AG EIS INTERNATIONAL, INC.
+
+
+By: /s/ DR. PHILLIP A. STOREY By: /s/ JAMES E. MCGOWAN
+ ------------------------- -------------------------
+ Name: Dr. Phillip A. Storey Name: James E. MCGOWAN
+ Title: VORSTAND (EXEC. VP) Title: Pres/CEO
+
+
+ 4
\ No newline at end of file
diff --git a/raw/3511_standard_nda.pdf b/raw/3511_standard_nda.pdf
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diff --git a/raw/354452_0000950123-99-011178_document_13.txt b/raw/354452_0000950123-99-011178_document_13.txt
new file mode 100644
index 0000000000000000000000000000000000000000..e7ff4043e43662969b3f2684ee200928919f688e
--- /dev/null
+++ b/raw/354452_0000950123-99-011178_document_13.txt
@@ -0,0 +1,242 @@
+ 1
+ EXHIBIT (c)(3)
+
+
+
+ PLASMA-THERM, INC.
+
+
+
+ CONFIDENTIALITY AGREEMENT
+
+ This Confidentiality Agreement (the "Agreement"), made and entered into
+as of this 1st day of September, 1999, by and between Plasma-Therm, Inc., a
+corporation organized under the laws of the State of Florida ("PTI" or the
+"Company") and Balzers Limited through its Balzers Process System Division, a
+corporation organized under the laws of the Principality of Liechtenstein
+("BPS").
+
+ The parties hereto desire to explore and discuss a possible transaction
+or to further a business relationship between them.
+
+ In connection therewith, the parties will be given access to
+Confidential Information (as defined below) relating to each other's businesses
+and affairs;
+
+ In consideration of the promises and the mutual covenants and
+obligations hereinafter set forth, the parties agree as follows.
+
+ SECTION 1. CONFIDENTIAL INFORMATION. Except as set forth below,
+"Confidential Information" shall mean and include any financial, operational,
+technical and other information relating to the present and future businesses
+and affairs of the party disclosing the information (the "Disclosing Party"),
+which information is provided to the other party (the "Receiving Party") in
+connection with the business relationship provided in written, oral, graphic,
+pictorial or recorded form or stored on computer discs, hard drives, magnetic
+tape or digital or any other electronic medium (it being understood that oral
+communications will be confirmed in writing within three (3) working days). It
+is further understood that the term "Confidential Information" does not mean and
+include information which:
+
+ (a) is or subsequently becomes publicly available without the
+ Receiving Party's breach of any obligation owed to the
+ Disclosing Party;
+
+ (b) prior to disclosure hereunder is within the possession of the
+ Receiving Party, and was obtained by the Receiving Party from a
+ source not under obligation not to disclose such information or
+ any of its Representatives as defined below.
+
+ (c) is lawfully received by the Receiving Party from a third party
+ (other than the Disclosing Party) having rights to disseminate
+ without restriction such information and such information is
+ received by the Receiving Party from such third party without
+ notice to the Receiving Party of any restriction against its
+ further disclosure;
+
+ (d) is disclosed with the prior written approval of the Disclosing
+ Party; or
+
+
+
+
+ 2
+
+ (e) is required to be produced by the receiving party under order of
+ a court of competent jurisdiction or a valid administrative or
+ congressional subpoena; PROVIDED, HOWEVER, that upon issuance of
+ any such order or subpoena, the Receiving Party shall promptly
+ notify the Disclosing Party and shall provide the Disclosing
+ Party with an opportunity (if then available) to contest the
+ propriety of such order or subpoena (or to arrange for
+ appropriate safeguards against any further disclosure by the
+ court or administrative or congressional body seeking to compel
+ disclosure of such Confidential Information).
+
+ SECTION 2. OWNERSHIP. The Receiving Party hereby acknowledges and
+agrees that all of the Confidential Information of the Disclosing Party is the
+exclusive proprietary property of the Disclosing Party, is being disclosed
+solely for the purpose of enabling the parties to conduct the discussions
+relating to the Transaction is to be used by the Receiving Party only in such
+limited manner as is permitted by the provisions of this Agreement.
+
+ SECTION 3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Confidential
+Information shall (a) be kept confidential by the Receiving Party and not
+disclosed to any third party (except as provided in this Section 3) and (b) not
+be used by the Receiving Party for any commercial or competitive purpose
+whatsoever and may only be used in connection with the discussions relating to
+the Transaction. The Receiving Party may, however, disclose the Confidential
+Information to its directors, officers, Affiliates (as defined below) or legal
+or financial advisors (collectively, "Representatives"), but only if such
+Representatives reasonably need to know the Confidential Information for the
+purpose of evaluating the Transaction. The Receiving Party will (i) inform each
+of its Representatives receiving Confidential Information of the confidential
+nature of the Confidential Information and of the existence and the terms of
+this Agreement, (ii) direct its Representatives to treat the Confidential
+Information confidentially and not to use it other than in connection with an
+evaluation of the Transaction, (iii) require that any Representative other than
+a director or officer of Disclosing Party or Receiving Party execute a
+counterpart of this Agreement prior to any disclosure by the Receiving Party of
+Confidential Information to such Representative, which counterpart shall have
+annexed thereto a schedule (the "Disclosure Schedule") setting forth in
+appropriate detail the Confidential Information that is to be disclosed to such
+Representative. For purposes of this Agreement, the term "Affiliate" shall mean
+any Person that, directly or indirectly, through one or more intermediaries,
+controls or is controlled by, or is under common control with, the Person
+specified. As used in the foregoing definition, the term "Person" shall mean an
+individual, firm, trust, association, corporation, partnership, government
+(whether federal, state, local or other political subdivision, or any agency or
+bureau of any of them) or other entity.
+
+ SECTION 4. CARE AND RETURN OF CONFIDENTIAL INFORMATION. The Receiving
+Party and its Representatives hereby agree to use their best efforts to prevent
+inadvertent disclosure of Confidential Information to others. The Receiving
+Party agrees to treat the Confidential Information with at least the degree of
+care that it treats similar materials of its own, or a higher standard of care
+if reasonable under the circumstances.
+
+ Upon the request of the Disclosing Party, the Receiving Party
+will return to the Disclosing Party all documents which contain Confidential
+Information of the Disclosing Party, and agree that the Receiving Party and its
+Representatives will not retain any copies thereof.
+
+
+
+
+ -2-
+ 3
+
+ SECTION 5. NO LICENSES. Neither the execution of this Agreement nor the
+furnishing of any Confidential Information pursuant to this Agreement shall be
+construed as granting the Receiving Party or its Representatives, either
+expressly or by implication, any license or right to use any Confidential
+Information for its own benefit or the benefit of any other Person, firm or
+entity, and each party hereto expressly agrees not to so use any such
+information except as otherwise provided herein.
+
+ SECTION 6. NON-DISCLOSURE OF THE TRANSACTION. Neither party hereto
+shall publicly announce or otherwise disclose, without the prior written
+consent of the other, any proposed terms of or that discussions relating to the
+Transaction are taking place except for such disclosure as the party seeking to
+make disclosure has been advised by its legal counsel is required by law, in
+which case the party seeking to make disclosure shall provide the other party
+with as much prior notice of such announcement or disclosure (including the
+proposed text of such announcement or disclosure) as is reasonably possible
+under the circumstances (and attempt in good faith to obtain such other party's
+concurrence with the manner and extent of such disclosure).
+
+ SECTION 7. NO LIABILITY. Neither party hereto shall be under any
+obligation of any kind with respect to the Transaction, except for the matters
+specifically agreed to herein, unless and until a definitive agreement
+regarding the Transaction has been executed and delivered by each of the
+parties hereto.
+
+ SECTION 8. NON-SOLICITATION. The Company and Plasma-Therm agree that,
+without the prior written consent of the other, it will not, for a period of
+six months after the date of this agreement, solicit, attempt to divert or
+entice away or knowingly hire any person who is an employee of the other or any
+of its Affiliates on the date of this agreement.
+
+ SECTION 9. STANDSTILL AGREEMENT. For a period of six months following
+the date of this Agreement, each of the parties and its affiliates (as defined
+in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
+"Exchange Act), will not (and will not assist or encourage others to) directly
+or indirectly, without the written consent of the other party:
+
+ (a) acquire or agree, offer, seek or propose to acquire, or cause to
+ be acquired, ownership (including but not limited to, beneficial
+ ownership as defined in Rule 13d-3 under the Exchange Act) of
+ any of the other party's assets or businesses or any securities
+ issued by the other party, or any bank debt, claims or other
+ obligations of the other party, or any rights or options to
+ acquire such ownership, directly or from a third party;
+
+ (b) seek or propose to influence or control the management or
+ policies of the other party or to obtain representation on the
+ other's board of directors, or solicit, participate in the
+ solicitation of, any proxies or consents with respect to any
+ securities of the other, or make any public announcement with
+ respect to any of the foregoing or request permission to do any
+ of the foregoing;
+
+ (c) enter into any discussions, negotiations, arrangements or
+ understandings with any third party with respect to the
+ foregoing; or
+
+
+
+
+ -3-
+ 4
+
+ (d) seek or request permission or participate in any effort to do
+ any of the foregoing or make or seek permission to make any
+ public announcement with respect to any of the foregoing.
+
+ If at any time during such six months period either party or its
+ Representatives are approached by any third party with respect to any
+ of the foregoing, such party shall promptly inform the other of the
+ nature of such contact and the proposed transaction and shall identify
+ the parties thereto.
+
+ SECTION 10. GOVERNING LAW. This Agreement shall be construed and
+enforced in accordance with the laws of the State of Florida.
+
+ SECTION 11. TERM. Except as specified elsewhere herein, the term of
+this agreement shall be six months commencing on the date hereof, unless
+otherwise agreed in writing by the parties hereto.
+
+ IN WITNESS WHEREOF, the parties hereto have caused this Confidentiality
+Agreement to be executed and delivered by their respective appropriate
+officers, thereunto duly authorized, as of the date first written above.
+
+
+ PLASMA-THERM, INC.
+
+
+ By: /s/ Stacy L. Wagner
+ --------------------------------------
+ Name: Stacy L. Wagner
+ Title: Chief Financial Officer & Secretary
+
+
+ BALZERS LIMITED
+ Balzers Process Systems Division
+
+
+ By: /s/ Martin Bader /s/ Erich Haefeli
+ -------------------- ---------------
+ Name: Dr. Martin Bader Erich Haefeli
+ Title: Division Manager General Counsel
+ Semiconductors
+
+
+
+
+
+
+
+
+
+
+ -4-
\ No newline at end of file
diff --git a/raw/356841_0000950109-98-003750_document_2.txt b/raw/356841_0000950109-98-003750_document_2.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8c22a75bb24292babbaeb8e21ace4bf2d2631e41
--- /dev/null
+++ b/raw/356841_0000950109-98-003750_document_2.txt
@@ -0,0 +1,108 @@
+ EXHIBIT C
+
+ PATENT ASSIGNMENT AND
+ NON-DISCLOSURE AGREEMENT
+
+
+AGREEMENT between FRANKLIN ELECTRONIC PUBLISHERS, INC., a Pennsylvania
+corporation, having a place of business at One Franklin Plaza, Burlington, New
+Jersey 08016-4907 or any of its subsidiaries (referred to as "FRANKLIN") and
+____________________________ residing at ________________________ an employee of
+Franklin or one of its subsidiaries ("EMPLOYEE").
+
+ BACKGROUND
+
+1. EMPLOYEE has been hired by FRANKLIN in a position with access to information
+relating to the understanding of, testing, or improvement of existing products
+of FRANKLIN, the development of new products for FRANKLIN, and/or the general
+business activities of FRANKLIN.
+
+2. The parties desire to reduce to writing the patent assignment and
+non-disclosure aspects of the employment relationship.
+
+ TERMS OF AGREEMENT
+
+In and for the consideration of the employment of EMPLOYEE by FRANKLIN, EMPLOYEE
+agrees as follows:
+
+1. EMPLOYEE shall promptly and fully disclose to FRANKLIN any and all
+ inventions, discoveries, writings, programs, and improvements made by him
+ or her pertaining to or useful in the business of FRANKLIN during his or
+ her period of employment by FRANKLIN, and any improvements to his or her
+ invention, writings, programs, and discoveries, made, conceived or
+ acquired by him or her no later than one year after the termination of
+ employment, whether made or conceived solely or jointly with others,
+ whether during regular business hours or otherwise; said Inventions,
+ discoveries, writings, programs or improvements shall become and remain
+ the property of FRANKLIN whether or not patent applications or copyright,
+ trademark, or maskwork registrations are filed thereon.
+
+2. EMPLOYEE shall from time to time, upon request and at the expense of
+ FRANKLIN, make application through the attorneys for FRANKLIN for any
+ letters patent or copyright or maskwork registrations of the United
+ States, and any and all foreign countries, on said inventions,
+ discoveries, writings, programs or improvements, and assign and transfer
+ all said applications, inventions, discoveries, writings, programs, and
+ improvements to FRANKLIN or its nominee, without further consideration.
+
+3. EMPLOYEE shall from time to time, upon request of FRANKLIN execute all
+ papers and do all other things that may be reasonably required in order to
+ protect the rights of FRANKLIN, and to vest in FRANKLIN or its successors
+ or assigns the entire rights, title and interest in and to any and all
+ inventions, discoveries, writings, program improvements, and applications
+ for letters patent or copyright or maskwork registrations relating to
+ anything pertaining to or useful in the business of FRANKLIN as provided
+ above.
+
+
+4. EMPLOYEE further agrees not to divulge to any third party, either during
+ his or her employment or thereafter, any confidential information
+ conceived by him or her, disclosed by FRANKLIN, or obtained by him or her
+ while in the employment of FRANKLIN relating in any way to any of
+ FRANKLIN'S processes, businesses, customers, trade secrets, apparatus,
+ products, software, packages, programs or trends in research, or to any of
+ the inventions, discoveries, writings, programs, and improvements covered
+ hereby, and agrees to maintain this information in confidence until such
+ time that such information has become widely known to the public or
+ described in an issued patent or in a printed publication of wide
+ circulation. Upon termination of the employment, EMPLOYEE agrees to turn
+ over to FRANKLIN all notes, memoranda, notebooks, drawings, records,
+ customer lists, telephone files (including Rolodex and business card
+ files) and correspondence in connection with anything done by him or her
+ relating to his or her employment, for the reason that all confidential
+ information contained therein is at all times the sole property of
+ FRANKLIN. Following the termination of his or her employment with
+ FRANKLIN, EMPLOYEE agrees not to solicit any employees or consultants of
+ Franklin at any time.
+
+5. EMPLOYEE understands and agrees that the continuance of EMPLOYEE in the
+ service of FRANKLIN for a definite period is not made obligatory upon
+ either party or a condition of this Agreement.
+
+6. EMPLOYEE agrees that this Agreement shall be binding upon his or her
+ heirs, executors, administrators or other legal representative or assigns.
+
+7. EMPLOYEE represents and warrants that he or she has no agreements with or
+ obligations to others in conflict with the foregoing.
+
+8. EMPLOYEE agrees that any portion of this Agreement held to be
+ unenforceable shall be severed from this Agreement and shall not adversely
+ affect any other portion of this Agreement.
+
+IN WITNESS WHEREOF, intending to be legally bound hereby, the parties have
+executed this Agreement on the date set forth below.
+
+ EMPLOYEE
+
+Dated: (SEAL)
+ ---------- -----------------------------
+
+ -----------------------------
+ (Print Name)
+
+ FRANKLIN ELECTRONIC PUBLISHERS, INC.
+
+
+Dated: BY:
+ ---------- --------------------------
+ Vice President
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+
+
+
+
+
+
+
+
+
+MUTUAL CONFIDENTIALITY AGREEMENT
+
+
+
+This Confidentiality Agreement (this “Agreement”) is dated as of July 22, 2008, and is made by and between North American Galvanizing & Coating, Inc. (“North American”) and AZZ incorporated (“AZZ”). North American and AZZ are sometimes herein collectively referred to as the “Parties” and each, a “Party”. In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be referred to herein as a “Receiving Party”; in its capacity as a Party disclosing Confidential Information, a Party may be referred
+to herein as a “Disclosing Party”.
+
+
+
+1. Confidential Information, Representatives. The Parties are considering entering into a possible transaction (the “Transaction”), and in order to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain confidential, non-public or proprietary information concerning its and/or its affiliates’ and/or subsidiaries’ businesses, plans, operations and assets (any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner in which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or extracts,
+copies and other reproductions thereof is herein referred to as the “Confidential Information”). As a condition to the Confidential Information being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents, advisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, “Representatives”), each Party agrees to treat the Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.
+
+
+
+2. Excluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party’s possession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived by the Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the Receiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below, the Receiving Party or any of its Representatives is advised by counsel that
+it is required to be disclosed by applicable law, regulation or legal process.
+
+
+
+3. Use and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential Information provided to it by or on behalf of the Disclosing Party solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information provided to it by the Disclosing Party to which the Disclosing Party gives its
+prior written consent, and (ii) any information contained in the Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible
+
+
+
+
+
+
+
1
+
+
+
+
+
+
+
+
+
+
+Transaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by any of its Representatives.
+
+
+
+4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised by counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person that it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place between the Parties concerning a possible Transaction, including the status of such discussions or negotiations.
+
+
+
+5. Return of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return all copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential Information (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or extracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect such Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to the terms of this Agreement) copies of the Confidential Information to the extent
+that such retention is required by applicable law or regulation.
+
+
+
+6. Subpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by or on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the Disclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or narrow such request, (iii) if disclosure of such Confidential
+Information is required, furnish only such portion of the Confidential Information as such Party is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a protective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential treatment will be afforded to such portion of the Confidential Information that is required to be disclosed.
+
+
+
+7. Disclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the accuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to each other resulting from a Party’s use of the Confidential Information, except as may be expressly set forth in a definitive written agreement between the Parties with respect to a Transaction, in accordance with the terms thereof.
+
+
+
+8. Definitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been executed and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein.
+
+
+
+
+
+
+
2
+
+
+
+
+
+
+
+
+
+
+
+
+
+
+9. Applicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to constitute material, non-public information. Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives who are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information concerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Each Party hereby agrees to fully comply with all applicable securities laws.
+
+
+
+10. Standstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is affiliates and subsidiaries who have received the other Party’s Confidential Information, or who are aware of the possibility of the Transaction, not to, directly or indirectly, unless specifically invited in advance by the other Party’s Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of any of the other Party’s assets or businesses or any securities issued by such other Party, or any rights or options to acquire such ownership (including from a third
+party), (ii) seek or propose to influence or control of the other Party’s management or policies (or request permission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing.
+
+
+
+11. No Unauthorized Contact or Solicitation by AZZ. During the course of AZZ’s evaluation of the Transaction, all inquiries and other communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ agrees not to directly or indirectly contact or communicate with any executive or other employee of North American concerning the Transaction, or to seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or offer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.
+
+
+
+For a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its affiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any individual, representative or other capacity, employ or engage, or solicit for employment or engagement, any employee of, or any person whose activities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ’s consideration of the Transaction or otherwise seek to influence or alter any such person’s relationship with North American; provided, however, that the foregoing shall not prohibit AZZ from: (i) general advertising not directed
+toward employees of North American or hiring employees responding to such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by AZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to and independent of any communication with AZZ or any of AZZ’s representatives or agents regarding employment. If the foregoing provision shall be adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or
+
+
+
+
+
+
+
3
+
+
+
+
+
+
+
+
+
+
+
+otherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the operation of this provision in the particular jurisdiction in which such adjudication is made.
+
+
+
+12. Remedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be made whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching Party shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by the other Party in the event it successfully enforces the obligations of the breaching Party or its Representatives hereunder.
+
+
+
+13. Entire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters contained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this Agreement.
+
+
+
+14. No Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
+
+
+
+15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to the laws of conflict of laws.
+
+
+
+16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.
+
+
+
+17. Counterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement execute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by facsimile or other reliable electronic means.
+
+
+
+18. Term. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.
+
+
+
+[Remainder of Page Intentionally Left Blank]
+
+
+
+
+
+
+
4
+
+
+
+
+
+
+
+
+
+
+
+
+THIS AGREEMENT is executed and delivered effective as of the date first written above.
+
+
+
+AZZ:
+
+
+
+AZZ INCORPORATED
+
+
+
+
+
+
+
+
+ |
+ |
+
+ By: |
+
+ /s/ David H. Dingus |
+
+
+
+
+ |
+ |
+
+ Name: |
+
+ David H. Dingus |
+
+
+
+
+ |
+ |
+
+ Title: |
+
+ President and CEO |
+
+
+North American:
+
+
+
+NORTH AMERICAN GALVANIZING
+
+& COATING, INC.
+
+
+
+
+
+
+
+
+ |
+ |
+
+ By: |
+
+ /s/ Ronald J. Evans |
+
+
+
+
+ |
+ |
+
+ Name: |
+
+ Ronald J. Evans |
+
+
+
+
+ |
+ |
+
+ Title: |
+
+ President and CEO |
+
+
+
+
+
+
+
+
+
+
+
+
Signature Page to Confidentiality Agreement
+
+
+
+
+
+
+
+
+
+
+
\ No newline at end of file
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diff --git a/raw/65781_0000950123-00-009565_y41542ex99-d_3.txt b/raw/65781_0000950123-00-009565_y41542ex99-d_3.txt
new file mode 100644
index 0000000000000000000000000000000000000000..eade01da70843ff6ea70f3706c85daa8befd2046
--- /dev/null
+++ b/raw/65781_0000950123-00-009565_y41542ex99-d_3.txt
@@ -0,0 +1,179 @@
+
1
+
+
+ NON-DISCLOSURE AGREEMENT
+
+ The parties to this Agreement are MPD Technologies, Inc. ("Disclosing
+Party") and the undersigned "Recipient". The parties desire that Disclosing
+Party disclose certain Information or Items to Recipient, but Disclosing Party
+desires to maintain the trade secret, proprietary or private nature of such
+Information or Items.
+
+ As used herein, the following words have the indicated meanings:
+
+ (i) "Disclose" means to reveal, make known, make available, furnish, or
+permit access to, whether or not intentionally.
+
+ (ii) "Information" means all oral, written, or other information
+whatsoever, including information in documents and other recording media and
+information embodied in any item, which in connection with the Matter, is (a)
+obtained by Recipient from or through Disclosing Party, (b) obtained by or
+through Recipient by an examination of any Item, or (c) created by or through
+Recipient with the use of information in (a) or (b). It includes but is not
+limited to ideas, inventions, discoveries, formulas, methods, designs, drawings,
+specifications, engineering and manufacturing data. This information is limited
+to trade secrets and other proprietary or private information of Disclosing
+Party or of any third party if disclosed by or through Disclosing Party.
+
+ (iii) "Item" means any system, subsystem, assembly, subassembly, device,
+components, product, or machine, work of authorship, or part thereof, or
+substance which is disclosed by or through Disclosing Party hereunder, which
+embodies trade secret or other proprietary or private information of Disclosing
+Party or of any third party if disclosed by or through Disclosing Party.
+
+ (iv) "Matter" means the project or other matter in connection with which
+this Agreement is executed. This matter is or relates to the potential
+acquisition by the Recipient of a controlling ownership interest in the share
+capital or business of the Disclosing Party.
+
+The parties to this Agreement have agreed as follows:
+
+1. Non-Disclosure. Recipient agrees as follows:
+
+ 1.1. For a period of three (3) years from the date of entering in to this
+ Agreement, not to disclosure any Information or Item, in any manner
+ whatsoever, directly or indirectly, whether in whole or in part,
+ without the prior written consent of Disclosing Party, to any
+ individual, firm or entity, excepting solely an individual
+ 2
+ who (a) is an officer, director or employee of Disclosing Party or
+ of the Recipient and (b) has a clear need to know for purposes
+ directly related to the Matter.
+
+2. Exclusions. The obligations of a Recipient under Section 1.1 hereof shall
+ not apply to the following:
+
+ 2.1. Any Information which, at the time of disclosure, is already
+ rightfully possessed by Recipient or is already in the public
+ domain;
+
+ 2.2. Any Information which, after the disclosure, enters the public
+ domain without any action or fault of Recipient.
+
+ 2.3. Any Information which is obtained, other than in connection with the
+ Matter, from any individual, firm or entity which had the
+ unrestricted right to disclose it;
+
+ 2.4. Any Information which is developed independently by Recipient
+ without reference to any Information or Item;
+
+3. Non-Disclosure Agreements from Third Parties. If Disclosing Party gives
+ its written consent to Recipient to disclose Information or Items to a
+ third party, Recipient shall require the third party to execute a
+ non-disclosure agreement in form, and substance satisfactory to Disclosing
+ Party. Recipient shall promptly furnish Disclosing Party with a copy of
+ all such non-disclosure agreements.
+
+4. Notification of Mandatory Disclosure by Recipient. In the event you are
+ required by any legal or civil proceeding to disclose the Information or
+ Items to a third party, you agree to provide prompt notice to the
+ Disclosing Party, so that we might attempt to secure an appropriate
+ protective order, or waive your compliance with this Agreement. You agree
+ to cooperate with the Disclosing Party in its attempts to secure such a
+ protective order.
+
+5. Only One Source of Discussion. You agree that you will only discuss the
+ Matter with Mr. Al Weber, Chief Executive Officer, or Mr. Thomas V.
+ Gilboy, Chief Financial Officer of the Disclosing Party. Under no
+ circumstances will you discuss the Matter, or admit that the Matter has
+ been a topic of discussion with any other employees of the Disclosing
+ Party, or any other third party. In addition, during 2000, you agree not
+ to undertake any unusual efforts to research the business, operations,
+ prospects or finances of the Disclosing Party, where such research efforts
+ would include discussions with any third party, except in the ordinary
+ course of business.
+
+
+ 2
+ 3
+6. Employees. For a period of two (2) years Recipient (or any agent or
+ affiliates of the Recipient) will not have discussions with any "Covered
+ Employees" of the Disclosing Party regarding employment opportunities with
+ the Recipient or any of its affiliates. "Covered Employees" will include
+ any person who is employed by the recipient as a part or full time
+ employee either as of the date of this Agreement, or persons that
+ subsequently become employees of the Disclosing Party. However, if a
+ person subsequently terminates their employment with the Disclosing Party,
+ then the recipient can have such discussions with that person, after a
+ 5-day waiting period. In addition, if the Recipient published a general
+ posting for employment opportunities in any publication or web site, and
+ one of the Recipient's Covered Employees should respond to the posting,
+ then the Recipient will be free to have such discussions with that person.
+
+7. Survival. This Agreement shall survive the execution of any subsequent
+ contract between the parties hereto, excepting solely if the subsequent
+ contract relates to the Matter and expressly addresses Recipient's
+ non-disclosure obligations with respect to the Matter.
+
+8. Preservation of Markings. Recipient shall not alter or delete any markings
+ on any Information or Item restricting its disclosure, use or reproduction
+ or indicating its proprietary or private status. Recipient shall include
+ all such markings in all copies of any Information which it makes.
+
+9. No Proprietary Right; Return of Information or Items. Nothing herein shall
+ confer upon Recipient any right, title, interest or license whatsoever in
+ or to any Information or Items. At the end of our discussions regarding
+ the Matter, the Disclosing Party has the right to request that the
+ Recipient return all Information or Items to the Disclosing Party.
+
+10. No Obligations regarding any Transaction. Neither party is under any
+ obligation to pursue or conclude a transaction in connection with the
+ Matter. Both parties will bear their own expenses associated with
+ discussions pertaining to the Matter.
+
+11. No Representations or Warranties. The Disclosing Party makes no
+ representation or warranties of any nature regarding the accuracy or
+ completeness of the Information or Items provided to the Recipient at this
+ time.
+
+12. Injunction. In the event of any breach of this Agreement by either party,
+ or any threatened or attempted breach by either party, the other party to
+ this Agreement shall be entitled to an injunction against the breaching
+ party. Nothing contained herein precludes the other party from pursuing
+ any other remedies available hereunder or at law or equity for such
+ breach, including the recovery of damages.
+
+
+ 3
+ 4
+13. General
+
+ 13.1. This agreement constitutes the entire, final and complete agreement
+ between the parties relevant to the subject matter hereof, and it
+ supersedes and replaces all written and oral agreements relevant to
+ the subject matter made or existing by and between the parties or
+ their representatives, and there shall be no modifications hereto
+ unless it is in writing signed by the parties.
+
+ 13.2. Validity, interpretation, performance, remedies, and all other
+ issues relating to this Agreement shall be governed by the internal
+ law of the State of New York.
+
+ 13.3. This Agreement shall be binding upon and inure to the benefit of the
+ parties hereto and their respective heirs, legal representatives,
+ successors and assigns.
+
+
+MPD TECHNOLOGIES, INC. TELEFONAKTIEBOLAGET LM ERICSSON
+
+Signature: /s/ Thomas V. Gilboy Signature: /s/ Rolf Eriksson
+ --------------------- ------------------------
+Name: Thomas V. Gilboy Name: Rolf Eriksson
+ ------------------------ -----------------------------
+Title: Chief Financial Officer Title: Vice President
+ ----------------------- ----------------------------
+Date: 6 July 2000 Date: 6 July 2000
+ ----------------------- -----------------------------
+
+
+ 4
\ No newline at end of file
diff --git a/raw/69067_0000927016-00-002123_0010.txt b/raw/69067_0000927016-00-002123_0010.txt
new file mode 100644
index 0000000000000000000000000000000000000000..679162e2472fe5a0bc5bcdf966d11f1a4a0a3d50
--- /dev/null
+++ b/raw/69067_0000927016-00-002123_0010.txt
@@ -0,0 +1,147 @@
+
+ EXHIBIT (d)(2)
+
+ MUTUAL NON-DISCLOSURE AGREEMENT
+
+THIS AGREEMENT is entered into and made effective as of February 10, 2000, by
+and between New England Business Service, Inc. ("NEBS") and Premium Wear, Inc.
+("Premium Wear"). This Agreement provides for the protection from unauthorized
+disclosure or use of Confidential Information (as defined below) that may be
+furnished by one of the parties hereto to the other party and that may be used
+by the receiving party solely for the purpose of evaluating or engaging in a
+business relationship between the disclosing party and the receiving party.
+
+1. "Confidential Information" means non-public information relating to the
+disclosing party's business that the disclosing party designates as being
+confidential or proprietary or which, under the circumstances surrounding
+disclosure, ought to be treated as confidential. "Confidential Information"
+includes, without limitation, ideas, concepts, designs, specifications,
+drawings, blueprints, tracings, models, samples, data, computer programs,
+marketing plans and strategies, business strategies, customer names, mailing
+lists, prices, rates, costs, information received from others that the
+disclosing party is obligated to treat as confidential, and other technical,
+financial or business information. Confidential Information may be furnished in
+any tangible or intangible form, including written or printed documents, visual
+demonstrations or inspections, computer disks or tapes, other electronic media
+and oral communications.
+
+The receiving party's obligations hereunder will not apply, or will cease to
+apply, to that Confidential Information which the receiving party can establish
+(i) is or hereafter becomes generally known or available to the public or
+interested persons through no breach of this Agreement by the receiving party;
+(ii) is rightfully known to the receiving party without restriction on
+disclosure at the time of its receipt from the disclosing party; (iii) is
+rightfully furnished to the receiving party by a third party without breach of
+an obligation of confidentiality; (iv) is disclosed to a third party by the
+disclosing party without similar restrictions on such third party's rights; (v)
+is independently developed by the receiving party without use of or reference to
+the Confidential Information; (vi) is required to be disclosed pursuant to the
+order of a court, administrative agency or other governmental body (provided
+that the receiving party shall give the disclosing party reasonable notice prior
+to such disclosure and shall comply with any applicable protective order or
+equivalent); or (vii) is approved for release by written authorization of the
+disclosing party.
+
+2. Obligations of Receiving Party. The receiving party will protect Confidential
+Information by using at least the same degree of care, but no less than a
+reasonable degree of care, to prevent the unauthorized disclosure of such
+Confidential Information as the receiving party uses to protect its own
+confidential or proprietary information. The receiving party will neither
+disclose nor copy Confidential Disclosure except as necessary for its employees,
+agents or representatives with a need to know, provided that any such employee,
+agent or representative shall have agreed in writing, as a condition to his or
+her employment or engagement or in order to obtain Confidential Information, to
+be bound by non-disclosure and non-use obligations substantially similar to this
+Agreement. Any copies which are made will be identified as belonging to the
+disclosing party and shall be reproduced with the disclosing party's proprietary
+rights notices in the same manner in which such notices appear in the original
+copy provided by the disclosing party. The receiving party will not use the
+Confidential Information for any purpose except to evaluate a business
+relationship with the disclosing party or otherwise in pursuance of such a
+relationship. Nothing in this Agreement will be construed to limit the receiving
+party's right to independently develop information similar to the Confidential
+Information or to compete with the disclosing party so long as the receiving
+party does not violate its obligations hereunder regarding the non-disclosure
+and use of the Confidential Information.
+
+3. Ownership of Confidential Information. All Confidential Information shall
+remain the property of the disclosing party. By disclosing information to the
+receiving party, the disclosing party does not grant any express or implied
+right to the receiving party to or under any of the disclosing party's patents,
+copyrights, trademarks or trade secret information. The receiving party will
+return all originals, copies, reproductions and summaries of Confidential
+Information immediately upon the disclosing party's request or, at the
+disclosing party's option, destroy the same, and will deliver to the disclosing
+party, upon its request, a certificate of a duly authorized officer certifying
+as to the foregoing.
+
+4. Non-Disclosure of Discussions. The parties agree not to disclose the
+existence of this Agreement and the fact that they are engaged in discussions
+unless required to do so by applicable securities laws as reasonably determined
+by their respective legal counsel. If such disclosure is necessary, the parties
+agree to notify each other as soon as possible in advance of such disclosure
+and agree to provide a copy of such disclosure to the other party.
+
+5. Standstill. NEBS agrees not to buy Premium Wear's common shares without
+the written consent of the Board of Directors of Premium Wear prior to
+March 1, 2002.
+
+6. Remedies. The receiving party acknowledges that money damages would not be a
+sufficient remedy for any breach of this Agreement, and the disclosing party
+will be entitled to specific performance and injunctive relief as remedies for
+any such breach. Such remedies will not be deemed to be the exclusive remedies
+for a breach of this Agreement but will be in addition to all other remedies
+available at law or equity to the disclosing party.
+
+7. No Warranty. THE DISCLOSING PARTY MAKES NO REPRESENTATION, WARRANTY,
+ASSURANCE, GUARANTY OR INDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH
+RESPECT TO THE QUALITY OF THE INFORMATION FURNISHED BY THE DISCLOSING PARTY,
+NON-INFRINGEMENT OF ANY RIGHTS OF THIRD PARTIES, OR ANY OTHER MATTER OF ANY
+NATURE WHATSOEVER. THE DISCLOSING PARTY ACCEPTS NO RESPONSIBILITY FOR ANY
+EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN BY THE RECEIVING PARTY AS A
+RESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING PARTY. This Agreement
+does not require any party to furnish any information to another party. It is
+further understood that neither party has any obligation under or by virtue of
+this Agreement to enter into any type of business relationship with the other
+party.
+
+8. Term. The obligations of each receiving party hereunder with respect to the
+non-disclosure and use of the disclosing party's Confidential Information shall
+survive until such time as all such Confidential Information disclosed
+hereunder becomes publicly known and made generally available through no action
+or inaction of the receiving party.
+
+9. General. This Agreement constitutes the entire agreement between the parties
+with respect to the subject matter hereof and supersedes any prior or
+contemporaneous agreements or understandings, written or oral, concerning the
+subject matter hereof. This Agreement may be amended, modified or revoked only
+by a written instrument executed by all parties hereto. Failure to enforce any
+provision of this Agreement shall not constitute a waiver of any term hereof,
+and no waiver of a provision of this Agreement shall constitute a waiver of any
+other provision(s) or of the same provision on another occasion. This Agreement
+shall be binding upon and inure to the benefit of the parties hereto and their
+respective heirs, legal representatives, successors and assigns. This Agreement
+shall be governed by and construed in accordance with the laws of the State of
+Minnesota. Each party consents to personal jurisdiction in any action brought in
+any court, federal or state, of competent jurisdiction within the State of
+Minnesota. If any provision of this Agreement shall be held by a court of
+competent jurisdiction to be illegal, invalid or unenforceable, the remaining
+provisions shall remain in full force and effect.
+
+
+PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC.
+5500 Feltl Road 500 Main Street
+Minnetonka, MN 55343-7902 Groton, MA 01471
+
+By: /s/ Thomas D. Gleason By: /s/ Daniel M. Junius
+ --------------------- --------------------
+(Signature of Authorized (Signature of Authorized
+Representative) Representative)
+
+Name: Thomas D. Gleason Name: Daniel M. Junius
+ ------------------ ------------------
+(Print) (Print)
+
+Title: Chairman Title: Senior Vice President
+ ------------------ and CFO
+ ---------------------
\ No newline at end of file
diff --git a/raw/703339_0001387308-13-000090_ex101.htm b/raw/703339_0001387308-13-000090_ex101.htm
new file mode 100644
index 0000000000000000000000000000000000000000..468c6a75426bae9abdb7e3e1edb86c524c7fdc09
--- /dev/null
+++ b/raw/703339_0001387308-13-000090_ex101.htm
@@ -0,0 +1,470 @@
+
+
+ ex101.htm
+
+
+
+
+
+Ex. 10.1
+
+
+
+
+INDEPENDENT CONTRACTOR,
+
+NON-DISCLOSURE,
+
+and
+
+INVENTION ASSIGNMENT AGREEMENT
+
+
+
+
+This independent Contractor Non-Disclosure and Invention Assignment Agreement (the “Agreement”) is effective as of May 6, 2013, and entered into by and between Capital Group Holdings, Inc., a Minnesota corporation, with address at 16624 North 90th Street, Suite 200, Scottsdale, AZ 85260, and
+
+
+
+Tailor Made Business Solutions, PLLC
+
+_____________________________________________________________________________
+
+Full Name of Independent Contractor (“Contractor”)
+
+
+
+
+[redacted]
+
+______________________________________________________________________________
+
+Address of Independent Contractor
+
+
+
+
+Chief Financial Officer services
+
+______________________________________________________________________________
+
+Describe Services to be Provided
+
+
+
+
+In consideration of our work as an independent contractor or the continuation of our work as an independent contractor (it being understood that this Agreement does not itself give Contractor rights to work or continued work) for Capital Group Holdings, Inc., a Minnesota corporation, or any of its predecessors, successors, assigns, affiliates or subsidiary companies (each hereinafter referred to as the “Company”), Contractor agrees as follows:
+
+
+
+
+I. INDEPENDENT CONTRACTOR.
+
+
+
+
+A. Contractor agrees to be compensated by the Company as follows:
+
+
+
+
+i. Fee The Company will pay Contractor $150,000 annually for the first full year to be adjusted proportionately with increases commensurate and at the same time with those awarded to the CEO and COO of the Company during the term of this contract.
+
+
+
+
+ii. For the first year only a Payment of $25,000 of the Fee shall be advanced to Contractor within the first six months of this Agreement. Additionally, the Contractor will be paid a fee of $10,416.66 per month over the next 12 months. Allowing the contractor to be paid the above agreed upon amount of $150,000 for first twelve months
+
+
+
+
+
+
+
+iii. Stock. The Company will issue Contractor 3,000,000 restricted shares of common stock upon execution of this Agreement as fully earned.
+
+
+
+
+iv. The Company will reimburse Contractor for reasonable business expenses, including travel and temporary lodging, incurred on behalf of the Company. Any additional expenses shall be pre-approved by the Company and will be reimbursed subject to receiving reasonable substantiating documentation relating to such expenses.
+
+
+
+
+B. Contractor is, and will remain, an independent contractor in with our relationship to the Company.
+
+
+
+
+C. The Company shall not be responsible for withholding taxes with respect to our compensation. Contractor agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to Contractor.
+
+
+
+
+D. Contractor acknowledges and agrees that am not an employee of Company for any purpose whatsoever, but an independent contractor. Company is interested only in the results obtained by Contractor and I shall have sole control of the manner and means of performance under this Agreement. Company shall not have the right to require Contractor to do anything which would jeopardize the relationship of independent contractor between Company and Contractor. All expenses and disbursements incurred by Contractor in connection with this Agreement shall be borne wholly and completely by Contractor. Contractor does not have, nor shall Contractor hold itself out as having, any right, power or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon Company, unless Company shall consent thereto in writing.
+
+
+
+
+E. Contractor understands that this Agreement shall not render Contractor as an employee, partner, or joint venture with the Company for any purpose.
+
+
+
+
+F. Contractor understands that the initial term of this Agreement shall be for two (2) years. However, regardless of the term of this Agreement, Contractor understands that the Company may terminate this Agreement for any reason at any time with 10 days prior written notice to Contractor.
+
+
+
+
+
+
+
+|
+ II.
+ |
+
+ TRADE SECRETS AND CONFIDENTIAL INFORMATION.
+ |
+
+
+
+
+
+
+|
+
+ |
+
+ A.
+ |
+
+ Confidentiality and Confidential Information.
+ |
+
+
+
+Contractor agrees to regard and preserve as confidential all information obtained by Contractor relating or pertaining to (i) the Company’s business, projects, plans, products, planned or proposed products, customers, potential customers, trade secrets, and other confidential information (including business and financial information), and any computer programs and software or unpublished know-how, whether patented or unpatented, and to (ii) all of our activities for or on behalf of the Company, and Contractor agrees not to publish or disclose any part of such information to others or use the same for our own purposes or the purposes of others, during the time Contractor is working for Company or thereafter. Any information of the Company which is deemed a “trade secret” by the California Uniform Trade Secret Act shall be considered to be confidential information and therefore within the scope of this Agreement, unless the Company advises Contractor otherwise in writing. Contractor further agrees to preserve as confidential the confidential information of any third party to which Contractor may have access and to treat such information as though it were Company confidential information.
+
+
+
+B. Prevention of Unauthorized Release of Company Confidential Information.
+
+
+
+Contractor agrees to promptly advise the Company of any knowledge which Contractor may have of any unauthorized release or use of any Company confidential information, and shall take reasonable measures to prevent unauthorized persons or entities from having access to, obtaining or being furnished with any Company confidential information.
+
+
+
+C. Confidential Information of Third Parties.
+
+
+
+Contractor agrees not to disclose to the Company and not to use in any way in connection with our work for the Company any confidential information or trade secrets of any kind, or any embodiments thereof, of any previous employer or other third party. Specifically, and without limitation, Contractor agrees to use only our general knowledge, experience and skill in connection with our work with the Company and acknowledge that this is the purpose for which Contractor has been hired by the Company.
+
+
+
+D. Termination of Work and Deliverables.
+
+
+
+Contractor agrees that, upon termination of our contract with the Company (voluntary or otherwise), Contractor will return to the Company all things belonging to the Company, and that all documents, records, notebooks and tangible articles containing or embodying confidential information, including copies thereof, then in our possession or control, whether prepared by Contractor or others, will be left with the Company. Deliverables shall also included, but not be limited to: (i) all source code; (ii) firmware; (iii) executable code; (iv) assembled code; (v) documentation including design and any modification thereto, (vi) schematics; (vii) prototype and/or production hardware.
+
+
+
+ CONTRACTOR RECOGNIZES THAT THE UNAUTHORIZED TAKING OF ANY OF THE COMPANY’S TRADE SECRETS IS A CRIME UNDER SECTION 499(C) OF THE CALIFORNIA PENAL CODE, AND IS PUNISHABLE BY IMPRISONMENT IN A STATE PRISON OR IN A COUNTY JAIL FOR A TIME NOT EXCEEDING ONE YEAR, OR BY A FINE NOT EXCEEDING FIVE THOUSAND DOLLARS ($5,000), OR BY BOTH SUCH FINE AND SUCH IMPRISONMENT. CONTRACTOR FURTHER RECOGNIZES THAT SUCH UNAUTHORIZED TAKING OF THE COMPANY’S TRADE SECRETS MAY ALSO RESULT IN CIVIL LIABILITY UNDER CALIFORNIA CIVIL CODE SECTION 3426, ET SEQ., AND THAT A WILLFUL TAKING MAY RESULT IN AN AWARD AGAINST CONTRACTOR FOR THE COMPANY’S ATTORNEYS’ FEES AND TRIPLE THE AMOUNT OF THE COMPANY’S DAMAGES.
+
+
+
+III. INVENTIONS.
+
+
+
+
+
+
+|
+
+ |
+
+ A.
+ |
+
+ Disclosure of Inventions.
+ |
+
+
+
+Contractor acknowledges and agree that, pursuant to our work for the Company, Contractor will be in a position which could provide the opportunity for conceiving and/or reducing to practice inventions, improvements, developments, ideas or discoveries, whether patentable or unpatentable (collectively hereinafter referred to as “Inventions”). Accordingly, Contractor agrees to promptly disclose to the Company, in writing, all Inventions conceived or reduced to practice by Contractor while working for the Company either solely or jointly with others, and whether or not during regular working hours. Contractor further agrees to maintain adequate and current written records of such Inventions.
+
+
+
+B. Company Inventions.
+
+
+
+The assignment provisions in Paragraph III.C below shall apply only to “Company Inventions” as defined herein. Company Inventions shall mean any Invention that either:
+
+
+
+
+
+
+|
+
+ |
+
+ 1.
+ |
+
+ relates, at the time of conception or reduction to practice of the Invention, to:
+ |
+
+
+
+
+
+
+|
+
+ |
+
+ a.
+ |
+
+ the Company’s business, projects or products, or to the manufacture or utilization thereof; or
+ |
+
+
+
+
+
+
+|
+
+ |
+
+ b.
+ |
+
+ the actual or demonstrably anticipated research or development of the Company; or
+ |
+
+
+
+
+
+
+|
+
+ |
+
+ 2.
+ |
+
+ results from any work performed directly or indirectly by Contractor for the Company; or
+ |
+
+
+
+
+
+
+|
+
+ |
+
+ 3.
+ |
+
+ results, at least in part, from the use of the Company’s time, materials, facilities or trade secret information regardless of whether Company equipment is used.
+ |
+
+
+
+C. Assignment of Company Inventions.
+
+
+
+Contractor hereby assigns, and agree to assign, to the Company all our right, title and interest in and to all Company Inventions. Also, Contractor hereby assigns, and agree to assign, to the Company all Inventions conceived or reduced to practice by Contractor within one year following the termination of our work for the Company (voluntary or otherwise), if the Invention is a result of the Company’s information which was obtained by Contractor during our work for the Company.
+
+
+
+THIS SECTION C DOES NOT APPLY TO ANY INVENTION WHICH QUALIFIES FULLY UNDER THE PROVISIONS OF CALIFORNIA LABOR CODE SECTION 2870, INCLUDING ANY IDEA OR INVENTION WHICH IS DEVELOPED ENTIRELY ON OUR OWN TIME WITHOUT USING THE COMPANY’S EQUIPMENT, SUPPLIES, FACILITIES OR TRADE SECRET INFORMATION, AND WHICH IS NOT RELATED TO THE COMPANY’S BUSINESS (ACTUAL OR DEMONSTRABLY ANTICIPATED), AND WHICH DOES NOT RESULT FROM WORK PERFORMED FOR THE COMPANY.
+
+
+
+D. Execution of Necessary Documents.
+
+
+
+Contractor agrees that, upon request and without compensation therefore, but at no expense to Contractor, and whether during the time Contractor is working for the Company, or thereafter, Contractor will do all lawful acts, including the execution of papers and lawful oaths and the giving of testimony, that in the opinion of the Company, its successors and assigns, may be necessary or desirable in obtaining, sustaining, reissuing, extending and enforcing United States and foreign Letters Patent, including design patents, on all of such Company Inventions, and for perfecting, affirming, maintaining and recording the Company’s complete ownership and title thereto, and to otherwise cooperate in all proceedings and matters relating thereto.
+
+
+
+E. Exception.
+
+
+
+Contractor has listed below all unpatented, but potentially patentable, ideas and inventions conceived prior to our work for the Company (and which have not been assigned to a former employer) and which are, therefore, excluded from the scope of this Agreement:
+
+
+
+
+1. __None Noted_______________________________________________;
+
+2. _________________________________________________;
+
+3. _________________________________________________; and
+
+4. _________________________________________________.
+
+
+
+
+IV. COPYRIGHTS.
+
+
+
+
+Contractor agrees that all right, title and interest in any and all copyrights, copyright registrations and copyrightable subject matter which occur as a result of our work for the Company shall be the sole and exclusive property of the Company, and agree that such works comprise works made for hire. Contractor hereby assigns, and agree to assign, all right, title and interest in any and all copyrights, copyright registration and copyrightable subject matter which occur as a result of our work for the Company. Contractor hereby irrevocably appoints Company as our attorney-in-fact for the purpose of executing any and all documents and performing any and all other acts necessary to give effect and legality to the provisions of this paragraph and paragraph II.D above.
+
+
+
+
+V. NO UNFAIR COMPETITION.
+
+
+
+As consideration for entering into this Agreement with the Company, and the Company providing Contractor compensation for our services, Contractor agrees not to compete with the Company as follows:
+
+
+
+A. During The Time Contractor is Working for the Company.
+
+
+
+Contractor agrees that during the time Contractor is working for the Company, Contractor will not interfere with the business of the Company in any manner. Particularly, but without limitation, Contractor agrees to refrain from planning or organizing a competitive business during the time Contractor is working for the Company. Contractor further agrees that during the time Contractor is working for the Company, Contractor will not have any proprietary interest in any competitive business except for an interest of less than five percent (5%) of the outstanding shares of a publicly-held corporation, meaning a corporation whose outstanding shares are owned by one hundred (100) or more shareholders. Contractor further agrees that during the time Contractor is working for the Company, Contractor will not solicit customers of the Company for any purpose whatsoever.
+
+
+
+In addition, Contractor represents and warrant that Contractor does not presently perform or intend to perform, during the term of this Agreement, consulting or other services for, or engage in or intend to engage in an employment relationship with, companies and / or individuals who have businesses or proposed businesses in any way involve products or services which would be competitive with the Company’s products or services, or those products or services proposed or in development by the Company during the term of the Agreement.
+
+
+
+VII. GENERAL PROVISIONS.
+
+
+
+
+A. If any portion of this Agreement is found to be void or unenforceable, it shall be severed from this Agreement, leaving in force the remainder of this Agreement.
+
+
+
+
+B. This Agreement will be binding upon our heirs, assigns, executors, administrators or other legal representatives.
+
+
+
+
+C. No waiver or modification of any of the terms or provisions of this Agreement shall be valid unless contained in a single writing and signed by both the Company and Contractor. No course of conduct or manner of dealing with the parties shall constitute a waiver of any term or provision of this Agreement.
+
+
+
+
+D. In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled, in addition to its court costs, to such reasonable attorney fees, expert witness fees and legal expenses as shall be fixed by a court of competent jurisdiction. Subject to the provision of paragraph IV(C), this Agreement shall be governed by the laws of the State of California. The exclusive jurisdiction for any legal proceeding regarding this Agreement shall be in the courts of said state, and Contractor hereby expressly submits to the jurisdiction of said courts.
+
+
+
+
+E. Nothing in this Agreement shall limit the remedies available to the Company. Specifically, and without limitation, wherever Contractor has agreed to execute assignment or other documents for the benefit of the Company, Contractor hereby irrevocably appoints the Company as our attorney-in-fact for the limited purpose of executing any and all such documents and performing any and all other acts necessary to give effect and legality to the provisions of this Agreement.
+
+
+
+
+F. Wherever necessary to carry out the intent of the parties, certain provisions of this Agreement, including, without limitation, Sections I; II; III.A, C, D; IV; V; VI; and VII shall survive the termination of our work for the Company and shall continue in full force and effect.
+
+
+
+G. Contractor acknowledges that this Agreement is in consideration of our work with the Company, whether executed before, at, or following our initial work therewith. Contractor further acknowledges that this Agreement does not create any obligation for our continued work with the Company.
+
+
+
+H. This Agreement contains the entire understanding between Contractor and the Company with respect to the subject matter hereof, and there are no representations, warranties, promises or undertakings other than those contained in the provisions above.
+
+
+
+
+
+
+
+
+INDEPENDENT CONTRACTOR:
+
+
+
+
+
+
+
+
+
+
+
+
+
+Date: _____________________
+
+(Signature)
+
+
+
+
+Thomas P. Meola, CPA
+
+Managing Member
+
+Tailor Made Business Solutions, PLLC
+
+
+
+
+
+
+
+
+
+
+
+
+
+Date: _____________________
+
+(Signature)
+
+
+
+
+Erik J. Cooper
+
+Chairman & CEO
+
+Capital Group Holdings, Inc.
+
+
+
\ No newline at end of file
diff --git a/raw/703361_0001193125-12-242586_d356019dex9910.htm b/raw/703361_0001193125-12-242586_d356019dex9910.htm
new file mode 100644
index 0000000000000000000000000000000000000000..bafbb586aa422818ed1f3107f9277b787b7fe920
--- /dev/null
+++ b/raw/703361_0001193125-12-242586_d356019dex9910.htm
@@ -0,0 +1,268 @@
+
+Mutual Non-Disclosure Agreement
+
+
+
+ Exhibit 99.10
+
+
+
+
+
MUTUAL NON-DISCLOSURE AGREEMENT
+This Mutual Non-Disclosure Agreement (this “Agreement”) is dated as of March 31, 2012 between Integrated Device
+Technology, Inc., a Delaware corporation (“IDT”), and PLX Technology, Inc., a Delaware corporation (“PLX”). IDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX
+(“Proposed Transaction”). As used in this Agreement, the party disclosing Confidential Information, as defined below, is the “Disclosing Party” and the party receiving the Confidential Information is the
+“Recipient”.
+
+
+| 1. |
+During the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is furnished by either the Disclosing Party or its
+Representatives (as defined below) to the Recipient or the Recipient’s subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives, including, without limitation, financial advisors, counsel,
+accountants, experts, and consultants (collectively, “Representatives”) in connection with the Proposed Transaction, together with notes, analyses, compilations, studies or other documents prepared by the Recipient or by its
+Representatives to the extent they contain or otherwise reflect such information or the Disclosing Party’s review of, or interest in, the Recipient (“Confidential Information”). |
+
+
+
+| 2. |
+The Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction, provided, however, that the Recipient may disclose any
+Confidential Information to its Representatives who need to know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the Confidential Information to any Representative, however, the Recipient shall inform the
+Representative of the confidential nature of such information and undertake reasonable efforts to cause them to treat such information on a confidential basis. The Recipient shall be responsible for the breach of this Agreement by its
+Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and shall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the
+Confidential Information. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the Recipient’s Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party or any
+of its Representatives. |
+
+
+| 3. |
+ The public disclosure of the Proposed Transaction could have a material adverse effect on IDT’s and PLX’s businesses if, for any reason, a
+definitive agreement with respect to such transaction is not consummated. Accordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its Representatives not to, disclose to any person, other
+than its Representatives, either the fact that discussions or negotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and conditions with respect to the Proposed Transaction and no Confidential
+Information will be provided to such persons. The term “person” shall be broadly interpreted |
+
+
+
+
+
+
+
+ March 31, 2012
+
+
+
+
+| |
+
+to include, without limitation, any corporation, governmental agency or body, partnership or individual. |
+
+
+
+| 4. |
+The parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who has received from an issuer material, non-public
+information of the type which is the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person
+will purchase or sell such securities. |
+
+
+| 5. |
+Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the Disclosing Party. No license under any trade
+secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder. |
+
+
+| 6. |
+Upon the Disclosing Party’s written request, the Recipient shall promptly destroy or return to the Disclosing Party all written Confidential Information (whether
+prepared by the Disclosing party or its Representatives) and will not retain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one copy of each electronic version of such materials may be
+retained by Recipient and its Representatives in their archives pursuant to such party’s standard data backup and disaster recovery plans and (ii) Recipient’s outside legal counsel and accountants may retain one hard copy of such
+materials in its archives solely for regulatory or corporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential Information contained in such format may not be used for any other purpose and that
+all obligations contained herein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement. Return and/or destruction of Confidential Information and copies, extracts or other reproductions thereof
+and documents, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be certified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction upon the
+Disclosing Party’s written request. |
+
+
+| 7. |
+Nothing in this Agreement shall prohibit or limit the Recipient’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and
+methodologies) (i) that was known to Recipient or any of its Representatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available to the Recipient or any of its Representatives from a source
+other than the Disclosing Party or its Representatives, provided that such source is not known by the Recipient to be prohibited from disclosing such information by a contractual, legal, or fiduciary obligation to the Disclosing Party or its
+Representatives, (iii) which is or becomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement or (iv) which is independently developed by Recipient or any of its
+Representatives without reference to the Disclosing Party’s Confidential Information. |
+
+
+| 8. |
+ During the course of each party’s evaluation of the Proposed Transaction, all inquiries and other communications are to be made only to directors,
+officers, employees and |
+
Page 2 of 5
+
+
+
+
+
+
+
+ March 31, 2012
+
+
+
+
+| |
+
+Representatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A party shall not directly or indirectly contact or communicate with any
+shareholder, director, officer, employee or Representative of a party without the express written consent of the other party. |
+
+
+| 9. |
+In consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior written consent of the Chief Financial Officer or
+General Counsel of the other party, for a period of twelve (12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly, solicit for employment, or otherwise contract for the services of
+(or cause or seek to cause to leave the employ of other party or any of its affiliates) any person who is now employed or engaged (either as an employee or consultant) or becomes employed or engaged during the term of this Agreement by the other
+party or its affiliates, other than persons whose employment or engagement shall have been terminated at least six (6) months prior to the date of such solicitation, employment or other contractual arrangements. The prohibition contained in
+this paragraph does not extend to general solicitations of employment by a party not specifically directed towards the other party’s employees or consultants including but not limited to (i) advertising on the internet or in a newspaper or
+periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring company where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program conducted by
+the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response by the hiring party if the employee approaches the hiring party on an unsolicited basis. |
+
+
+
+| 10. |
+In the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative proceeding to disclose any Confidential
+Information, the Recipient or its Representative will give the Disclosing Party prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other protective remedy. If, in the absence of a protective order
+(or other protective remedy), the Recipient or its Representative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose such information without liability hereunder; provided, however, (i) that the
+Recipient or its Representative give the Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the Disclosing Party, use commercially reasonable efforts to obtain assurances that confidential
+treatment will be accorded to such information, (ii) only that portion of the Confidential Information which is legally required to be disclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only
+if it has received the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or advisable under applicable law. |
+
+
+
+| 11. |
+ Although each party will endeavor to include in the Confidential Information items known to it which it believes to be relevant for the purpose of the
+other party’s investigation and analysis of the Proposed Transaction, each party understands and agrees that neither the other party nor any of its Representatives have made or make any representation or warranty as to the accuracy or
+completeness of the Confidential Information. In particular, and without limitation of the foregoing, each party understands that any projected or forecasted financial, |
+
Page 3 of 5
+
+
+
+
+
+
+
+ March 31, 2012
+
+
+
+
+| |
+
+operating, performance, strategy or other information reflects merely the judgment of management of such party at the time of the preparation of such information, and is based upon a number of
+factors and circumstances beyond the control of the party and its management. Accordingly, there can be no assurance that actual results or performance will be in line with any such projections or forecasts. Each party agrees that, except as
+otherwise specifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor any of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising
+out of or resulting from the use of the Confidential Information. |
+
+
+| 12. |
+Subject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party’s right to develop, use and market products and services
+similar to or competitive with those of the other party shall remain unimpaired. Each party acknowledges that the other party may already possess or have developed products or services similar to or competitive with those of the other party
+disclosed in the Confidential Information. |
+
+
+| 13. |
+The parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a party or its Representatives and that, in addition to all
+other available remedies, either party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. |
+
+
+
+| 14. |
+The parties agree that unless and until a definitive written agreement or other binding agreement between the parties with respect to a relationship of the type
+contemplated by the Proposed Transaction has been executed and delivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a relationship by virtue of this or any written or oral expression
+concerning such a transaction by any of its Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party further acknowledges and agrees that the other party reserves the right, in its sole
+discretion, to make or not to make any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the other party or any of its directors, officers, affiliates, employees, agents, advisors or representatives
+with regard to the Proposed Transaction, and to terminate discussions and negotiations at any time. |
+
+
+| 15. |
+This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous
+agreements, arrangements, understandings, promises and assurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors, directors, officers, employees, shareholders, owners, affiliates,
+representatives and agents, and shall be governed by, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect to principles of conflict of laws which would result in the application of the
+laws of any other jurisdiction. |
+
+
+| 16. |
+ This Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original and all of which counterparts shall
+together constitute one and the |
+
Page 4 of 5
+
+
+
+
+
+
+
+ March 31, 2012
+
+
+
+
+| |
+
+same agreement. Nothing in this Agreement may be modified or waived except by a written agreement between the parties expressly so modifying or waiving this Agreement. |
+
+
+
+| 17. |
+The term of this Agreement shall be one (1) year from the date hereof. |
+
+
+
+
+
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+ |
+
+
+
+| Integrated Device Technology, Inc. |
+ |
+ |
+ |
+PLX Technology, Inc. |
+
+ |
+ |
+ |
+ |
+ |
+
+| By: |
+ |
+/s/ Ted Tewksbury |
+ |
+ |
+ |
+By: |
+ |
+/s/ Ralph Schmitt |
+
+| Name: |
+ |
+ Ted Tewksbury |
+ |
+ |
+ |
+Name: |
+ |
+Ralph Schmitt |
+
+| Title: |
+ |
+ President and Chief Executive Officer |
+ |
+ |
+ |
+Title: |
+ |
+President and CEO |
+
+
Page 5 of 5
+
+
+
\ No newline at end of file
diff --git a/raw/71297_0000071297-97-000059_document_6.txt b/raw/71297_0000071297-97-000059_document_6.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f5a003ce6eaa062e6416fb280bfbfc8e5fb710d8
--- /dev/null
+++ b/raw/71297_0000071297-97-000059_document_6.txt
@@ -0,0 +1,104 @@
+Exhibit 10(b)(iii)
+
+
+ CONFIDENTIAL INFORMATION
+ NON-DISCLOSURE AGREEMENT
+
+ This Agreement, dated as of May 21, 1996 is between Granite
+State Energy, Inc., with offices at 25 Research Drive, Westboro,
+MA, ("GSEnergy") and New England Power Company, with offices at 25
+Research Drive, Westborough, MA ("Company").
+
+ WHEREAS, the Company and GSEnergy wish to discuss a
+prospective purchase of power for purposes of the New Hampshire
+Retail Competition Pilot Program (the "Prospective Purchase");
+
+ FOR GOOD AND VALUABLE CONSIDERATION, GSEnergy and the Company
+agree as follows:
+
+ 1. In connection with the Prospective Purchase, the Company
+will provide GSEnergy with certain proprietary and commercially
+sensitive information and develop further such information with
+GSEnergy (all of the foregoing hereinafter referred to as
+"Information") which it wishes GSEnergy to maintain as
+confidential. GSEnergy agrees that it will safeguard such
+Information maintaining it confidential and not using it except for
+the purposes of such review and analysis.
+
+ The term "Information" shall mean and includes all information
+in whatever form, provided for the purpose of GSEnergy's review and
+analysis, but is not information which:
+
+ (a) is in the public domain at the time of disclosure to
+ GSEnergy; or
+
+ (b) enters the public domain after disclosure to GSEnergy,
+ except where such entry is the result of a breach by
+ GSEnergy of this Agreement; or
+
+ (c) was already in the possession of GSEnergy prior to
+ disclosure to GSEnergy and was not then subject to an
+ obligation of confidence; or
+
+ (d) is rightfully disclosed to GSEnergy by a third person.
+
+ 2. GSEnergy agrees to maintain all Information in secrecy
+and confidence for a period of seven (7) years from the date of
+disclosure thereof, using the same degree of care as is used to
+protect its own Information. In no event will this degree of care
+be less than a reasonable degree of care.
+
+ 3. If GSEnergy desires to use individuals not employed by
+GSEnergy, GSEnergy shall not disclose Information to these
+individuals without obtaining prior written approval from the
+Company and having appropriate non-disclosure agreements signed in
+form and substance satisfactory to the Company.
+ - 2 -
+
+ 4. It will not constitute a violation of this Agreement for
+GSEnergy to disclose Information as required by a governmental body
+or a court of competent jurisdiction or as otherwise required by
+law, provided that the Company has been given notice of such
+requirement and been afforded a reasonable opportunity to contest
+it, if applicable.
+
+ 5. If any provision of this Agreement is or becomes or is
+deemed invalid, illegal or unenforceable in any jurisdiction, such
+provision shall be deemed amended to conform to applicable laws so
+as to be valid and enforceable or, if it cannot be so amended
+without materially altering the intention of the parties, it shall
+be stricken, and the remainder of this Agreement shall remain in
+full force and effect.
+
+ 6. This Agreement shall be governed by and construed and
+enforced in accordance with the laws of the Commonwealth of
+Massachusetts.
+
+ 7. This Agreement may be executed in any number of
+counterparts, each of which shall be an original and all of which
+shall constitute together but one and the same document.
+
+ 8. All notices from GSEnergy hereunder shall be in writing
+and delivered to the attention of Mr. Michael J. Hager, New England
+Power Company, 25 Research Drive, Westborough, MA 01582. All
+notices from the Company hereunder shall be in writing and
+delivered to GSEnergy at the above address.
+
+ IN WITNESS WHEREOF, GSEnergy and the Company have caused this
+Agreement to be executed by their authorized representatives.
+
+
+ GRANITE STATE ENERGY, INC.
+
+
+ By: s/John H. Dickson
+
+ Title: President
+
+
+ NEW ENGLAND POWER COMPANY
+
+
+ By: s/Jeffrey Tranen
+
+ Title: President
\ No newline at end of file
diff --git a/raw/714562_0001104659-19-001345_a18-42231_6ex10d8.htm b/raw/714562_0001104659-19-001345_a18-42231_6ex10d8.htm
new file mode 100644
index 0000000000000000000000000000000000000000..83130a907571e2040469e11a2232fbd90dddd365
--- /dev/null
+++ b/raw/714562_0001104659-19-001345_a18-42231_6ex10d8.htm
@@ -0,0 +1,456 @@
+
+
+
+
+
+
+
+
+
Exhibit 10.8
+
+
NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
+
+
THIS NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT (“Agreement”) is made and entered into, effective as of the date first written below, by and among First Financial Corporation (“First Financial”), First Financial Bank, N.A. (“Bank”), a wholly-owned subsidiary of First Financial, HopFed Bancorp, Inc. (“HopFed”), Heritage Bank USA, Inc., (“Heritage”), a wholly-owned subsidiary of HopFed, and Billy C. Duvall (“Employee”). “Banking Organization” shall mean First Financial, the Bank, HopFed, and/or Heritage. “Financial Institution” shall mean the Bank and/or Heritage. First Financial, the Bank, HopFed, Heritage and Employee may be collectively referenced as the “parties” or individually as a “party.”
+
+
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated January 7, 2019, by and between HopFed and First Financial (the “Merger Agreement”), HopFed shall be merged with and into First Financial (the “Merger”) effective as of the date and time provided in the Merger Agreement (the “Effective Time”); and
+
+
WHEREAS, Heritage will be merged into the Bank at the Effective Time or shortly thereafter; and
+
+
WHEREAS, Employee is currently an employee of Heritage and the Bank intends to offer employment to the Employee as an at-will employee to provide services for and on behalf of the Bank immediately upon the Effective Time;
+
+
WHEREAS, as a result of employment with Heritage up to the Effective Time and with the Bank thereafter, Employee had, has and will have access to Confidential Information (as defined below) and may have acquired or will acquire knowledge regarding Confidential Information, including, but not limited to, information regarding Customers or Potential Customers (as defined below), and a Banking Organization could be harmed if such Confidential Information were to be used, divulged or become known to any competitor of a Banking Organization or to any other Person (as defined below) or to any entity outside of a Banking Organization;
+
+
WHEREAS, Employee has developed or may develop contacts and business relationships with Customers or Potential Customers which could be used to the detriment of a Banking Organization and/or to solicit employees away from a Banking Organization; and
+
+
WHEREAS, each Banking Organization desires reasonable protection of its respective confidential business and customer information which such Banking Organization has developed and will develop over the years at substantial expense.
+
+
NOW, THEREFORE, the parties incorporate the above recitals, and in consideration of the mutual promises, covenants and agreements made herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
+
+
1
+
+
+
+
1. Consideration/At-Will Employment.
+
+
a. This Agreement neither constitutes an employment contract or agreement to Employee for a stated period of time, nor does it alter Employee’s existing employment status.
+
+
b. In consideration of Employee’s promises, covenants and agreements set forth in this Agreement, (i) as of the date of this Agreement and up to the Effective Time Heritage shall maintain Employee’s employment with the compensation and benefits commensurate therewith, and (ii) effective as of the Effective Time, the Bank shall offer or maintain Employee’s employment as an at-will employee with the compensation and benefits commensurate therewith. For avoidance of doubt, following the Effective Time, Bank or Employee can terminate the employment at any time, with or without cause, and with or without prior notice. Employee understands and agrees, upon the Effective Time, that he/she will be an at-will employee of Bank and that this Agreement does not change or affect Employee’s employee-at-will status.
+
+
2. Duties. Employee shall devote his/her full working time and attention to the performance of those services for the Banking Organization which are assigned to him/her from time to time and to perform such services in a faithful, honest and diligent manner and in the best interest of such Banking Organization.
+
+
3. Definitions of Key Terms.
+
+
a. “Banking and Financial Services” shall mean those banking and related financial services of a Banking Organization or subsidiary thereof, including but not limited to, checking and savings accounts, health savings accounts, money market accounts, loans, credit cards, cash management services, lines of credit, investment services (such as IRAs, college savings plans, estate planning, investment planning, business planning), and trust services, provided during any period in which Employee served or will serve in any capacity for a Financial Institution and all banking and related financial services substantially similar to such banking and related financial services.
+
+
b. “Confidential Information” shall mean any and all materials, records, data, documents, lists, writings, and information (whether in writing, printed, electronically stored, computerized, on disk or otherwise, including, but not limited to, all copies, summaries, analyses, drafts, and extracts) relating or referring in any manner to trade secrets (as currently defined under applicable law, including, but not limited to, the Indiana Uniform Trade Secrets Act and any amendments or successor statutes) of a Banking Organization, as well as other non-public financial or proprietary information of a Banking Organization including, but not limited to, business reports, business plans, projections, income statements, profit and loss statements, business strategies and/or strategic plans, internal audits, sales
+
+
2
+
+
+
+
information, sales techniques, business costs, product pricing, budgets, research and development, intellectual property, software and/or computer programs, marketing strategies or ideas, marketing plans or materials, business development plans or strategies, records or information relating to customers or account holders, customer lists, inventions, and processes, systems, methods, documentation or devices which are unique or proprietary to the business of or services or products of a Banking Organization. Confidential Information shall not include information that: (i) is or becomes readily or publicly available, not as a result of a violation of this Agreement or other obligation of confidence, directly or indirectly, of the disclosing party; (ii) is developed by other parties, including, but not limited to, subsequent employers of the Employee, independent of the knowledge or resources of the Employee based upon his or her prior access to a Banking Organization’s Confidential Information; (iii) is independently developed after the Employee’s termination of employment without reference to or use of the Confidential Information or materials based thereon; (iv) is based on the Employee’s personal experience, knowledge, enterprise and expertise in the delivery of Banking and Financial Services and which is general knowledge concerning the industry, not specific to a Banking Organization; or (v) is disclosed pursuant to the requirements of a court, administrative agency or other governmental agency.
+
+
c. “Customers” or “Customer” shall mean any Person to whom a Banking Organization rendered or provided Banking and Financial Services at any time during the one-year period prior to Employee’s termination of employment with a Financial Institution: (i) with whom Employee had any material contact (either directly or indirectly); (ii) which Employee managed, had responsibility for or regularly serviced while employed by the Financial Institution, provided, however, this shall not be construed to include supervising those who have such a relationship to the Customer; or, (iii) about which Employee obtained Confidential Information.
+
+
d. “Employees,” “Agents,” and “Independent Contractors” shall mean any and all persons employed or contracted by a Banking Organization or who were employed or contracted by a Banking Organization, as an employee, agent or independent contractor, within the six (6) month period prior to Employee’s termination of employment with either Financial Institution.
+
+
e. “Person” shall mean any individual, partnership, corporation, organization, bank, credit union, firm, association, limited liability company, trust, joint venture, company or other entity, body, agency or department thereof.
+
+
f. “Potential Customer” shall mean any Person that Employee directly solicited, targeted or specifically identified as a prospective or potential customer, or about which Employee obtained information on behalf of a Banking Organization for purposes of directly soliciting, targeting or specifically identifying as a prospective or potential customer, during the one (1) year period prior to Employee’s termination of employment with either Financial Institution.
+
+
3
+
+
+
+
g. “Solicit”, “Solicited” or “Solicitation” means any direct or indirect communication of any kind whatsoever, regardless of by whom initiated, inviting, advising, inducing, encouraging, enticing, or requesting either expressly or implicitly, any Person, in any manner, to take or refrain from taking action, provided, however, this definition does not include communications initiated by Customers or Potential Customers of their own initiative, without prompting or encouragement by Employee or anyone acting on Employee’s behalf.
+
+
4. Non-Disclosure of Confidential Information. During the course of Employee’s employment with a Financial Institution, Employee agrees that Employee has or will continue to become knowledgeable about, or come to be in possession of, Confidential Information. If such Confidential Information were to be divulged or become known to any competitor of a Banking Organization, or to any other Person outside of a Banking Organization, or if Employee were to consent to be employed by any competitor of a Banking Organization, or to engage in competition with a Banking Organization, such Banking Organization will be harmed. In addition, Employee has or may develop relationships with Customers or Potential Customers so that the Confidential Information could be used to Solicit the business of such Customer or Potential Customer away from a Banking Organization.
+
+
Employee shall not, directly or indirectly, use any Confidential Information for any purpose other than the benefit of a Banking Organization, and shall not directly or indirectly, disclose, communicate, deliver, exhibit or provide any Confidential Information to any Person, except other Employees or Agents of a Banking Organization who have a need to know such Confidential Information for a proper corporate or business purpose, as required in the normal course of Employee’s service as an employee. Nothing in this Section 4, or any other provision of this Agreement, shall be construed to prohibit Employee from reporting conduct to, providing truthful information to, or participating in any investigation or proceeding brought or conducted by any federal or state government agency or self-regulatory organization.
+
+
Employee specifically acknowledges that the Confidential Information, whether reduced to writing or maintained electronically or in the mind or memory of Employee and, whether compiled by a Banking Organization and/or the Employee, derives independent economic value from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been put forth by each Banking Organization to maintain the secrecy of such information, that such information is the sole property of such Banking Organization and that any retention and/or use of such information during or after Employee’s employment with either Financial Institution (except in the course of performing the Employee’s duties of employment with a Financial Institution and except as otherwise set forth above) constitutes a misappropriation of a Banking Organization’s Confidential Information.
+
+
Employee agrees that all Confidential Information and all records, documents and materials relating to all Confidential Information (including all copies thereof) shall be and remain the sole and exclusive property of a Banking Organization, and upon Employee’s termination of employment, all such Confidential Information, whether in paper or electronic form, shall be returned to a Financial Institution in good condition, without Employee retaining a copy thereof, including, but not limited to, retaining an electronic copy on any electronic device regardless of whether such device is owned by Employee. At a
+
+
4
+
+
+
+
Financial Institution’s request, Employee shall provide written verification, under the penalties for perjury, of his/her compliance with this covenant.
+
+
5. Non-Solicitation of Customers and Potential Customers. Employee acknowledges and agrees that by virtue of Employee’s position with a Banking Organization, Employee has or will have advantageous familiarity and personal contacts with Customers and Potential Customers and will have advantageous familiarity with the business operations and affairs of a Banking Organization. Employee further acknowledges and agrees that Employee has been or will be placed in a position that, were Employee to leave a Financial Institution to compete with the business of a Banking Organization, such entity from which the Employee departed would, upon violation of this Agreement, suffer irreparable harm and financial loss, as well as lost goodwill and Confidential Information. Therefore, in consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of one (1) year immediately following the termination of Employee’s employment with a Financial Institution (“Restriction Period”), for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
+
+
a. Solicit, divert, or take away (or attempt to Solicit, divert or take away) any Banking and Financial Services to or from any Customer or Potential Customer; or
+
+
b. advise, persuade or induce (or attempt to advise, persuade or induce) any Customer or Potential Customer to terminate, reduce, limit, or change the Customer’s services or business relationship, or the Potential Customer’s contemplated services or business relationship, with a Financial Institution; or
+
+
c. directly provide Banking and Financial Services to, or directly accept Banking and Financial Services from, any Customer or Potential Customer.
+
+
This Agreement is not intended to prevent Employee from accepting employment with an organization that competes with the Banking Organizations by offering Banking and Financial Services to Customers or Potential Customers. The Parties acknowledge that Employee may be associated with such an Organization and that such association may place Employee in a senior or supervisory role to those in the organization that have contact with Customers or Potential Customers. Employee shall not be in violation of this Agreement merely by engaging in such a role, which may include:
+
+
a. supervising those who provide Banking and Financial Services to Customers or Potential Customers;
+
+
b. engaging in credit review, underwriting, loan approval, or financial analysis of a Customer or Potential Customer’s business as a part of a supervisory or management role, so long as such activity does not require the disclosure of Confidential Information, direct contact with the Customer or Potential Customer, or the disclosure of Employee’s role to the Customer or Potential Customer;
+
+
5
+
+
+
+
c. performing or supervising those that perform data processing, accounting, rate review, document review or similar “back room” services related to a Customer or Potential Customer so long as the services do not require the disclosure of Confidential Information or contact with the Customer or Potential Customer.
+
+
6. Non-Solicitation of Employees and Others. In consideration of the covenants of all Financial Institutions contained herein, Employee agrees that during Employee’s employment with a Financial Institution, and for a period of two (2) years immediately following the termination of Employee’s employment with a Financial Institution, for whatever reason and regardless of how Employee’s employment was terminated, Employee shall not, directly or indirectly (including, but not limited to, through other individuals, any partnership, corporation or business entity in which Employee has an ownership interest or serves as an officer, employee, independent contractor, representative, agent or consultant), either for Employee’s own benefit or the benefit of any other Person:
+
+
c. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Employee to terminate his or her employment with a Banking Organization, or offer or provide employment (whether such employment is with Employee or any other Person) either on a full-time or part-time, consulting or Independent Contractor basis; or
+
+
d. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any Independent Contractors or Agents to terminate their contract or relationship with a Banking Organization or discontinue providing services to a Banking Organization and/or Customers; or
+
+
e. Solicit, entice or persuade (or attempt to Solicit, entice or persuade) any suppliers, vendors or others who were supplying services or goods to a Banking Organization during the one year period prior to Employee’s termination, to terminate, reduce, limit or change their business or relationship with a Banking Organization.
+
+
7. Tolling of Covenants. Employee acknowledges that a Banking Organization is entitled to the full post-termination restrictions on the activities set forth in Sections 5 and 6, as applicable. Therefore, in the event any of the provisions of these Sections are breached by Employee, the commencement of the applicable post-termination restriction will not begin until Employee is in full compliance with Section 5 and/or 6.
+
+
8. Severability/Blue Pencil. Each of the provisions of this Agreement, including, but not limited to, the restrictive covenants in Sections 5 and 6, are distinct and severable, notwithstanding that the covenants may be set forth in one section for convenience. If any provision of this Agreement shall be determined to be invalid, illegal or unenforceable in whole or in part, for any reason, neither the validity of the remaining part of such provision nor the validity of any other provision of this Agreement shall in any way be affected. Should any particular restrictive covenant, provision or clause of this Agreement be held unreasonable or unenforceable for any reason, including without limitation, the time period, geographic area and/or scope of activity covered by such covenant, provision or clause, the parties acknowledge and agree that such covenant, provision or clause shall be given effect and enforce to whatever extent would be
+
+
6
+
+
+
+
reasonable and enforceable under applicable law. The parties expressly authorize a court of competent jurisdiction to modify or revise such provision to limit the covenants to cover the maximum period of time, range of activities or other restrictions as would be enforceable under Indiana law.
+
+
9. Available Relief. Employee agrees that a Banking Organization, or its successor or assigns, will suffer irreparable damage and injury and will not have an adequate remedy at law in the event of any breach by Employee of any provision of Sections 4, 5 or 6, herein. Accordingly, in the event of a breach or of a threatened or attempted breach by Employee of Sections 4, 5, or 6, in addition to all other remedies to which a Banking Organization is entitled under law, in equity, or otherwise (including, but not limited to, monetary damages), a Banking Organization or its assigns and successors, shall be entitled to a temporary restraining order and/or preliminary or permanent injunction (without the necessity of showing any actual damage) or a decree of specific performance and no bond or other security shall be required in that connection.
+
+
10. Enforcement/Attorneys’ Fees. In any action that is brought to enforce or interpret this Agreement, the prevailing party or its assigns and successors, shall be entitled to recover their reasonable attorneys’ and paralegal fees and expenses incurred in connection therewith. If a Banking Organization or its assigns and successors, institute any action or proceeding to enforce the provisions of this Agreement, Employee hereby waives all claims or defenses that a Banking Organization or its assigns and successors, have an adequate remedy at law, and Employee shall not urge in any such action or proceeding the claim or defense that such a remedy at law exists.
+
+
11. Assignments; Successors and Assigns. The rights and obligations of Employee hereunder are not assignable or delegable by Employee, and any prohibited assignment or delegation will be null and void. The Banking Organization may, without the consent of the Employee, assign this Agreement to any successor or in connection with any merger, consolidation, share exchange, combination, sale of stock or assets or similar transaction. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of a Banking Organization.
+
+
12. Governing Law. This Agreement shall be interpreted under, subject to and governed by the laws of the State of Indiana, without consideration of the choice of law principles thereof, and all questions concerning its validity, construction and administration shall be determined in accordance with Indiana law.
+
+
13. Entire Agreement/Modification/Waiver. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and expressly supersedes any prior agreements between the parties relating to the subject matter hereof. This Agreement shall not be terminated, amended or modified without the prior written consent of the Bank’s President and Chief Executive Officer and Employee. No failure or delay by a Banking Organization in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any waiver by a Banking Organization under this Agreement operate or be construed as a continuing waiver or a waiver of any subsequent breach or noncompliance hereunder. No single or partial exercise of any right or remedy by a Banking Organization shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver by a Banking Organization under this Agreement shall be in writing and signed by the Bank’s President and Chief Executive Officer. A waiver shall operate only as to the specific term or condition
+
+
7
+
+
+
+
waived and will not constitute a waiver for the future or act on anything other than that which is specifically waived.
+
+
14. “No-Defense” Provision. The covenants set forth in this Agreement are essential terms and conditions to a Banking Organization employing or continuing to employ Employee, and shall be construed as independent of any other obligations or agreements between Employee and a Banking Organization. The existence of any claim or cause of action Employee may have against a Banking Organization, including, but not limited to, the alleged material breach by a Banking Organization of any agreement with Employee, shall not constitute a defense to the enforcement by a Banking Organization of the covenants and obligations in this Agreement and shall not relieve Employee of his or her obligations under this Agreement.
+
+
15. Jurisdiction and Venue. The parties agree that all suits, actions, proceedings, litigation, disputes, or claims relating to or arising out of this Agreement shall be filed and tried in the Superior or Circuit Court, as appropriate, of Vigo County, Indiana, or the United States District Court for the Southern District of Indiana, Terre Haute Division. In this regard, the parties hereby: (a) agree that venue shall be such stated courts; (b) irrevocably consent to service of process and to the jurisdiction and venue of such courts; and (c) irrevocably waive any claim of inconvenient forum if any such suit, claim, proceeding, litigation, dispute, or claim has been filed, brought, or made in any of such courts.
+
+
16. Construction. This Agreement is the result of negotiations between the parties, and no party shall be deemed to be the drafter of this Agreement; accordingly, this Agreement shall be interpreted and construed without any presumption or inference based upon or against the party causing this Agreement to be prepared. The language of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against any party.
+
+
17. Review and Consultation. Employee acknowledges and agrees that he/she has read this Agreement in its entirety prior to executing it, understands the provisions and effects of this Agreement, and has consulted with or had the opportunity to consult with an attorney or other advisers as he/she deemed appropriate in connection with the execution of this Agreement.
+
+
18. Section Headings. Section headings are inserted into this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
+
+
19. Reasonableness. Employee agrees and acknowledges that the covenants, restrictions and obligations set forth in this Agreement, including Sections 5 and 6, are reasonable and necessary to protect a Banking Organization. Employee agrees that the covenants, restrictions and obligations will not affect Employee’s ability to make a living.
+
+
20. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which shall be deemed a duplicate original but all of which shall constitute one and the same agreement. The parties agree that signatures transmitted by facsimile or other electronic means are acceptable the same as original signatures for the execution of the Agreement.
+
+
8
+
+
+
+
21. Miscellaneous. Any change in Employee’s duties, responsibilities, title, position, compensation, or status, with a Financial Institution will not affect the validity or enforceability of this Agreement.
+
+
22. Representations. Employee represents and warrants that he/she is not a party to an agreement with his or her prior employer(s) (other than Heritage or HopFed) or any other Person that prohibits Solicitation of business or competing with that employer or other Person. Employee affirms and represents that performance of his/her job duties and responsibilities for a Financial Institution does not, and will not, breach any agreement or covenant not to Solicit business, compete in business, or keep in confidence proprietary or confidential information acquired in confidence or in trust prior to Employee’s employment with a Financial Institution. Employee further represents that he/she has not retained any documents or information relating to Employee’s prior employers (other than Heritage or HopFed) that may be considered confidential or proprietary information and that Employee has not disclosed or used, and will not disclose or use, any information relating to his or her prior employer(s) in connection with Employee’s employment with a Financial Institution.
+
+
23. Return of Property. Upon termination of Employee’s employment, Employee shall immediately return to the Bank (if subsequent to the Effective Time) or Heritage (if prior to the Effective Time), all Banking Organizations documents and property, including, but not limited to, Confidential Information, computer discs, manuals, reports, files, memoranda, records, door and file keys, passwords and access codes, and any other physical or tangible things that Employee received, prepared, or helped prepare in connection with the Employee’s employment, and Employee shall not retain any copies, duplicates, reproductions or excerpts thereof. At the Bank’s or Heritage’s request, Employee shall provide written verification under the penalties for perjury of his/her compliance with this covenant.
+
+
24. Survival. Except as set forth below, the covenants in Sections 4, 5, 6 and 23 shall survive the termination of Employee’s employment with a Financial Institution regardless of the reason for termination. If the Merger is not consummated and the Merger Agreement is terminated, Sections 4, 5, 6 and 23 shall survive with respect to First Financial and the Bank, but shall not survive with respect to HopFed or Heritage.
+
+
[Signature Page to Follow]
+
+
9
+
+
+
+
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date indicated below.
+
+
+
+|
+ FIRST FINANCIAL CORPORATION |
+
+ |
+
+ |
+
+|
+ |
+
+ |
+
+ |
+
+|
+ By: |
+
+ /s/ Norman L. Lowery |
+
+ |
+
+ Date: |
+
+ January 7, 2019 |
+
+|
+ Printed Name: |
+
+ Norman L. Lowery |
+
+ |
+
+ |
+
+|
+ Title: |
+
+ President & CEO |
+
+ |
+
+ |
+
+|
+ |
+
+ |
+
+ |
+
+|
+ FIRST FINANCIAL BANK, N.A. |
+
+ |
+
+ |
+
+|
+ |
+
+ |
+
+ |
+
+|
+ By: |
+
+ /s/ Norman L. Lowery |
+
+ |
+
+ Date: |
+
+ January 7, 2019 |
+
+|
+ Printed Name: |
+
+ Norman L. Lowery |
+
+ |
+
+ |
+
+|
+ Title: |
+
+ President & CEO |
+
+ |
+
+ |
+
+|
+ |
+
+ |
+
+ |
+
+|
+ HOPFED BANCORP, INC. |
+
+ |
+
+ |
+
+|
+ |
+
+ |
+
+ |
+
+|
+ By: |
+
+ /s/ John E. Peck |
+
+ |
+
+ Date: |
+
+ January 7, 2019 |
+
+|
+ Printed Name: |
+
+ John E. Peck |
+
+ |
+
+ |
+
+|
+ Title: |
+
+ President/CEO |
+
+ |
+
+ |
+
+|
+ |
+
+ |
+
+ |
+
+|
+ HERITAGE BANK USA, INC. |
+
+ |
+
+ |
+
+|
+ |
+
+ |
+
+ |
+
+|
+ By: |
+
+ /s/ John E. Peck |
+
+ |
+
+ Date: |
+
+ January 7, 2019 |
+
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+ Printed Name: |
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+ John E. Peck |
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+ Title: |
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+ President/CEO |
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+ EMPLOYEE |
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+ Printed Name: |
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+ Billy C. Duvall |
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+ Date: |
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+ January 7, 2019 |
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+ Signature: |
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+ /s/ Billy C. Duvall |
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