Datasets:

kozue13
/

Contracts

@@ -1,395 +0,0 @@
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contract-nli/README.md DELETED Viewed

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-# ContractNLI: A Dataset for Document-level Natural Language Inference for Contracts
-ContractNLI is a dataset for document-level natural language inference (NLI) on contracts whose goal is to automate/support a time-consuming procedure of contract review.
-In this task, a system is given a set of hypotheses (such as "Some obligations of Agreement may survive termination.") and a contract, and it is asked to classify whether each hypothesis is _entailed by_, _contradicting to_ or _not mentioned by_ (neutral to) the contract as well as identifying _evidence_ for the decision as spans in the contract.
-ContractNLI is the first dataset to utilize NLI for contracts and is also the largest corpus of annotated contracts (as of September 2021).
-ContractNLI is an interesting challenge to work on from a machine learning perspective (the label distribution is imbalanced and it is naturally multi-task, all the while training data being scarce) and from a linguistic perspective (linguistic characteristics of contracts, particularly negations by exceptions, make the problem difficult).
-Details of ContractNLI can be found in our paper that was published in "Findings of EMNLP 2021".
-If you have a question regarding our dataset, you can contact us by emailing [email protected] or by creating an issue in this repository.
-## Dataset specification
-More formally, the task consists of:
-* **Natural language inference (NLI)**: Document-level three-class classification (one of `Entailment`, `Contradiction` or `NotMentioned`).
-* **Evidence identification**: Multi-label binary classification over _span_s, where a _span_ is a sentence or a list item within a sentence. This is only defined when NLI label is either `Entailment` or `Contradiction`. Evidence spans need not be contiguous but need to be comprehensively identified where they are redundant.
-We have 17 hypotheses annotated on 607 non-disclosure agreements (NDAs).
-The hypotheses are fixed throughout all the contracts including the test dataset.
-Our dataset is provided as JSON files.
-```json
-{
-  "documents": [
-    {
-      "id": 1,
-      "file_name": "example.pdf",
-      "text": "NON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (\"Agreement\") is entered into this ...",
-      "document_type": "search-pdf",
-      "url": "https://examplecontract.com/example.pdf",
-      "spans": [
-        [0, 24],
-        [25, 89],
-        ...
-      ],
-      "annotation_sets": [
-        {
-          "annotations": {
-            "nda-1": {
-              "choice": "Entailment",
-              "spans": [
-                12,
-                13,
-                91
-              ]
-            },
-            "nda-2": {
-              "choice": "NotMentioned",
-              "spans": []
-            },
-            ...
-          }
-        }
-      ]
-    },
-    ...
-  ],
-  "labels": {
-    "nda-1": {
-      "short_description": "Explicit identification",
-      "hypothesis": "All Confidential Information shall be expressly identified by the Disclosing Party."
-    },
-    ...
-  }
-}
-```
-The core information in our dataset is:
-* `text`: The full document text
-* `spans`: List of spans as pairs of the start and end character indices.
-* `annotation_sets`: It is provided as a list to accommodate multiple annotations per document. Since we only have a single annotation for each document, you may safely access the appropriate annotation by `document['annotation_sets'][0]['annotations']`.
-* `annotations`: Each key represents a hypothesis key. `choice` is either `Entailment`, `Contradiction` or `NotMentioned`. `spans` is given as indices of `spans` above. `spans` is empty when `choice` is `NotMentioned`.
-* `labels`: Each key represents a hypothesis key. `hypothesis` is the hypothesis text that should be used in NLI.
-The JSON file comes with supplemental information. Users may simply ignore the information if you are only interested in developing machine learning systems.
-* `id`: A unique ID throughout train, development and test datasets.
-* `file_name`: The filename of the original document in the dataset zip file.
-* `document_type`: One of `search-pdf` (a PDF from a search engine), `sec-text` (a text file from SEC filing) or `sec-html` (an HTML file from SEC filing).
-* `url`: The URL that we obtained the document from.
-## Baseline system
-In our paper, we introduced Span NLI BERT, a strong baseline for our task.
-It (1) makes the problem of evidence identification easier by modeling the problem as multi-label classification over spans instead of trying to predict the start and end tokens, and (b) introduces more sophisticated context segmentation to deal with long documents.
-We showed in our paper that Span NLI BERT significantly outperforms the existing models.
-You can find the implementation of Span NLI BERT in [another repository](https://github.com/stanfordnlp/contract-nli-bert).
-## License
-Our dataset is released under CC BY 4.0.
-Please refer attached "[LICENSE](./LICENSE)" or https://creativecommons.org/licenses/by/4.0/ for the exact terms.
-When you use our dataset in your work, please cite our paper:
-```bibtex
-@inproceedings{koreeda-manning-2021-contractnli,
-    title = "ContractNLI: A Dataset for Document-level Natural Language Inference for Contracts",
-    author = "Koreeda, Yuta  and
-      Manning, Christopher D.",
-    booktitle = "Findings of the Association for Computational Linguistics: EMNLP 2021",
-    year = "2021",
-    publisher = "Association for Computational Linguistics"
-}
-```
-## Changelog and release note
-* 10/5/2021: Initial release

contract-nli/TERMS DELETED Viewed

@@ -1,34 +0,0 @@
-Terms and Conditions of Use
-By accessing, reviewing, downloading or otherwise making use of the Hitachi America, Ltd. dataset, entitled “ContractNLI: A Dataset for Document-level Natural Language Inference for Contracts” (the “Dataset”), or any portion thereof, you are agreeing to these Terms and Conditions of Use.
-If you do not agree to these Terms and Conditions of Use in their entirety, please do not access, review, download or otherwise make use of the Dataset.
-The Dataset is being made available to you pursuant to, and you understand and agree that you will have the rights to access, review, download or otherwise make use of the Dataset, in accordance with the terms and conditions of the Creative Commons Attribution 4.0 International Public License.
-THIRD PARTY WEBSITES, PLATFORMS AND NETWORKS: To the extent the Dataset contains any links to third party websites, social media platforms or other Internet-based networks, you understand and agree that Hitachi America, Ltd. does not own, operate, control or endorse such third party websites, platforms or networks.  Accordingly, these Terms and Conditions do not apply to any such third party websites, platforms or networks or govern such third parties’ collection, use, storage, disclosure, or other processing of your personal information.  Such third party websites, platforms or networks will be subject to their own terms and conditions of use and privacy policies.
-NOTICES OF COPYRIGHT INFRINGEMENT: In the event you believe that the Dataset incorporates any of your work or materials in a way that may constitute infringement of your copyright or any other intellectual property right, Hitachi America, Ltd. will take appropriate actions in response to your notification thereof.
-Pursuant to Title 17, United States Code, Section 512(c)(3), a notification of claimed infringement must be a written communication addressed to the designated agent as set forth below (the “Notice“), and must include substantially all of the following:
-(a) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed;
-(b) a description of the copyrighted work or works that you claim have been infringed (“infringed work”) and identification of what material in such work(s) is claimed to be infringing (“infringing work”) and which you request to be removed or access to which is to be disabled;
-(c) a description of the exact name of the infringing work that is being used in the Dataset (and the location of the infringing work, if it appears in the Dataset);
-(d) information sufficient to permit Hitachi America, Ltd. to contact you, such as your physical address, telephone number, and email address;
-(e) a statement by you that you have a good faith belief that the use of the material identified in your Notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
-(f) a statement by you that the information in your Notice is accurate and, under penalty of perjury that you are the copyright owner or authorized to act on the copyright owner’s behalf.
-To reach Hitachi America, Ltd.’s Copyright Agent for Notice of claims of copyright infringement:
-Hitachi America, Ltd.
-2535 Augustine Drive, Third Floor
-Santa Clara, California 95054
-Attn.: Legal Dept.
-The Copyright Agent should only be contacted if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on or through the Dataset. The Copyright Agent will not respond to any other inquiries.

contract-nli/contract nli in txt/ 064-19 Non Disclosure Agreement 2019.txt DELETED Viewed

@@ -1,334 +0,0 @@
-Revised January 29th, 2019
-1
-NON-DISCLOSURE AGREEMENT
-Required Xnder JEA¶V Confidential Information Protection Program
-THIS NON-DISCLOSURE AGREEMENT ("AgUeePeQW´) iV eQWeUed iQWR WhiV ______day of
-__________ by and between JEA, located at 21 West Church Street, Jacksonville, Florida 32202 (the
-³Discloser´), aQd ____________________________________________________________ with an address
-at ______________________________________________ (Whe ³Recipient´) (hereafter Discloser and
-Recipient shall be referred to as the PARTIES}.
-WHEREAS,
-the
-Recipient
-desires
-to
-work
-with
-the
-discloser
-and/or
-view
-______________________________________________________________________documents regarding
-____________________________________ (the ³Transaction´); and
-WHEREAS, the discloser is required by its internal policies, state and federal laws, rules, regulations
-or standards to ensure that sensitive and confidential information is protected and not disclosed to the public;
-WHEREAS, the Parties have entered into a transaction related to the _______________________.
-The terms of those agreements are incorporated herein.
-JEA & Florida State Sunshine Application ± JEA is a publicly owned utility and all official
-information sharing is governed by Florida Sunshine Laws. The Florida Sunshine law is a series of laws
-designed to guarantee that the public has access to the public records of governmental bodies in Florida.
-However, as per the Florida Sunshine Law, certain information that could impact safe and secure operation is
-exempt which includes information classified and protected under federal regulatory standards such as
-NERC CIP, HIPAA, FCRA, and FACTA. Section 119.0713(4)(a), 5(a), F.S. govern any local government
-agency exemptions from inspection or copying of public records and exempts certain information including
-Security measures, systems, or procedures from public disclosure including ±
-I. Information related to the security of the technology, processes, or practices of a utility owned or
-operated by a unit of local government that are designed tR SURWecW Whe XWiliW\¶V QeWZRUkV,
-computers, programs, and data from attack, damage, or unauthorized access, which information, if
-disclosed, would facilitate the alteration, disclosure, or destruction of such data or information
-technology resources.
-II. Information related to the security of existing or proposed information technology systems or
-industrial control technology systems of a utility owned or operated by a unit of local government,
-which, if disclosed, would facilitate unauthorized access to, and alteration or destruction of, such
-systems in a manner that would adversely impact the safe and reliable operation of the systems
-and the utility.
-III. ReVXlWV Rf SeUiRdic iQWeUQal aXdiWV aQd eYalXaWiRQV Rf Whe VecXUiW\ SURgUaP fRU aQ ageQc\¶V daWa
-and information technology resources are confidential and exempt.
-This agreement applies to disclosure of the protected information that is exempt from Florida
-Sunshine Law disclosure and in no shape or manner would this agreement supersede the provisions of
-Florida Sunshine Law.
-NOW THEREFORE, in consideration of moving forward with the Transaction, the Recipient and the
-Revised January 29th, 2019
-2
-Discloser agrees as follows:
-1.
-Definition of Confidential Information.
-FRU SXUSRVeV Rf WhiV AgUeePeQW, ³Confidential Information´ PeaQV aQ\ data or information that is
-proprietary to the Parties and not generally known to the public, whether in tangible or intangible form,
-whenever and however disclosed, including but not limited to:
-a. the documents described in the Whereas clause above;
-b. Critical Infrastructure Information (CII) or Bulk Electric System Information
-(BCSI) or Security Sensitive Information (SSI) classified by JEA
-c. Protected Health Information in both physical and electronic form (PHI and ePHI)
-d. Personal Identifiable Information (PII)
-e. any protected, non-public information concerning the design or operation of present
-or future critical infrastructure;
-f. any information that could be used to compromise or expose the vulnerability of the
-Parties Cyber systems, processes, programs data, communications, energy and
-operations systems or structures;
-g. any Copyright application code, source code, technical design (not released for open
-use), trade secret, scientific or technical information, invention, design, process,
-procedure, formula, improvement, technology or method;
-h. any computer software, source code, object code, flow charts or  databases; and
-i.
-any other information that should reasonably be recognized as sensitive or
-confidential information of the Recipient or the disclosing party.
-Confidential Information shall not include information required to be disclosed in a judicial or
-administrative proceeding, or otherwise required to be disclosed by law or regulation, although the
-requirements of paragraph 6 hereof shall apply prior to any disclosure being made.
-2.
-Prohibition on Disclosure of Confidential Information.
-The Parties will:
-a. limit disclosure of any Confidential Information to its directors, officers, employees,
-ageQWV RU UeSUeVeQWaWiYeV (cRllecWiYel\ ³ReSUeVeQWaWiYeV´) Zho have a need to know
-such Confidential Information in connection with the Transaction, and only for that
-purpose;
-b. keep all Confidential Information strictly confidential by using a reasonable degree
-of care, but not less than the degree of care used by it in safeguarding its own
-confidential information; and
-c. not disclose any Confidential Information received to any third parties (except as
-otherwise provided for herein).
-The Recipient shall provide the Discloser with original signed copies of all of the
-Acknowledgements required under the preceding paragraph.  The Parties shall be responsible for any
-breach of this Agreement by any of their respective Representatives.
-3.
-Use of Confidential Information.  The Parties agree to use the Confidential Information solely in
-connection with the Transaction and not for any purpose other than as authorized by this Agreement without
-the prior written consent of an authorized representative of the Parties.  No other right or license, whether
-expressed or implied, in the Confidential Information is granted to the Parties hereunder.  Title to the
-Confidential Information will remain solely with the Party.  All use of Confidential Information by the
-Parties shall be for the benefit of the Parties and any modifications and improvements thereof by the
-Revised January 29th, 2019
-3
-Recipient shall be the sole property of Discloser.  Notwithstanding the foregoing, Confidential Information
-shall include any proprietary records created in the course of Whe ReciSieQW¶V course of engagement such as
-customized code, configuration, flowcharts or project data that was specifically designed to meet the needs
-of the Discloser.
-The Parties agree to ensure that all copyright products, such as source codes, system design
-data/architecture, and other proprietary information, disclosed during the engagement is protected from any
-misuse, alteration, modification, sharing, or transfer to any party without express permission of the Discloser.
-Such data is provided for the sole use of the Parties, and limited for the use under this agreement.
-4.
-Obligations of Receiving Party.
-a. No Use. The Receiving Party agrees not to use the Confidential Information in any way, or
-to manufacture or test any product embodying Confidential Information, except for the
-purpose set forth above.
-b. No Disclosure. The Receiving Party agrees to use the same degree of protection it uses for
-its own trade secret information, and in no event less than reasonable efforts, to prevent and
-protect the Confidential Information, or any part thereof, from disclosure to any person other
-WhaQ Whe ReceiYiQg PaUW\¶V ePSlR\eeV haYiQg a Qeed fRU diVclRVXUe iQ cRQQecWiRQ ZiWh Whe
-ReceiYiQg PaUW\¶V aXWhRUi]ed XVe Rf Whe CRQfideQWial IQfRUPaWiRQ.
-c. Protection of Secrecy. The Receiving Party agrees to take all steps reasonably within its
-control to protect the secrecy of the Confidential Information, and to prevent the
-Confidential Information from falling into the public domain or into the possession of
-unauthorized persons.
-d. No Duplication. The Receiving Party shall not duplicate Confidential Information furnished
-in tangible form except for purposes of this Agreement.
-e. Return of Information. on a Party's request, the other Party shall return all Confidential
-Information of the requesting Party, except for that portion of such Confidential Information
-that may be found in analyses prepared by, or for, the returning Party (collectively,
-³Analyses´), aQd Whe UeWXUQiQg PaUW\ aQd iWV ReSUeVeQWaWiYeV Vhall QRW UeWaiQ aQ\ cRSieV Rf
-such Confidential Information except the returning Party may retain one copy of the
-CRQfideQWial IQfRUPaWiRQ aV Qeeded WR cRPSl\ ZiWh aSSlicable laZ aQd/RU UeWXUQiQg PaUW\¶V
-record retention policies.  The Confidential Information retained by the returning Party, the
-portion of Confidential Information that may be found in Analyses prepared by, or for, the
-returning Party, and any Confidential Information furnished by the requesting Party not so
-requested or returned, will be held by the returning Party and kept subject to the terms of this
-Agreement or destroyed.
-5.
-Limits on Confidential Information.  The obligations and restrictions imposed by this Agreement
-will not apply to any information that:
-Revised January 29th, 2019
-4
-a. The Recipient can demonstrate was already known to the Recipient prior to the disclosure
-by the Discloser; or,
-b. has become publicly known through no wrongful act of the Recipient; or,
-c. was received by the Recipient without breach of this Agreement from a third party without
-restriction as to the use and disclosure of the DiVclRVeU¶V Confidential Information; or,
-d. was independently developed by the Recipient without use of the DiVclRVeU¶V Confidential
-Information; or
-e. was ordered to be publicly released by the requirement of a government agency. In this
-regard, the Parties understand that the Discloser iV VXbjecW WR FlRUida¶V PXblic RecRUdV AcW,
-Chapter 119, Florida Statutes, and that section 1004.22, Florida Statutes, provides limited
-protection of documents received by the Discloser.
-6.
-Compelled Disclosure of Confidential Information.
-a. The Recipient may disclose Confidential Information pursuant to any governmental, judicial,
-or administrative order, subpoena, discovery request, regulatory request or similar method,
-provided that the Recipient promptly notifies, to the extent practicable.
-b. The Recipient agrees that it shall not oppose and shall cooperate with efforts by, to the extent
-practicable, with respect to any such request for a protective order or other relief to preserve
-the confidentiality of the Confidential Information.
-c. Notwithstanding the foregoing, if the Discloser is unable to obtain or does not seek a
-protective order and the Recipient is legally requested or required to disclose such
-Confidential Information, disclosure of such Confidential Information may be made without
-liability.
-7.
-Term.
-a. This  Agreement  shall  remain  in  effect  for  a  two-year term  (subject  to  a  one  year
-extension if the parties are still discussing and considering the Transaction at the end of the
-second year) or the term of the contract, whichever is greater.
-b. NRWZiWhVWaQdiQg Whe fRUegRiQg, Whe SaUWieV¶ dXW\ WR hRld iQ cRQfideQce Confidential
-Information that was disclosed during term shall remain in effect indefinitely.
-8.
-Remedies.
-a. The Parties acknowledge that the Confidential Information is of a unique and valuable
-character, and that the unauthorized dissemination of the Confidential Information could
-cause irreparable harm to the Party and the general public.
-b. Therefore, the Parties shall be entitled to injunctive relief preventing the dissemination of
-any Confidential Information in violation of the terms hereof.  Such injunctive relief shall be
-in addition to any other remedies available hereunder, whether at law or in equity.
-c. The Discloser shall be entitled to recover its cRVWV aQd feeV, iQclXdiQg UeaVRQable aWWRUQe\V¶
-fees, incurred in obtaining any such relief.
-Revised January 29th, 2019
-5
-The Recipient further acknowledges that the unauthorized disclosure of certain information
-perWaining Wo ³CriWical AsseWs´ or ³CriWical InfrasWrXcWXre´ may constitute a violation of state and federal
-law.
-9.
-Return of JEA Confidential Information.
-The Recipient shall immediately return and redeliver to the other all tangible material embodying the
-JEA Confidential Information provided hereunder and all notes, summaries, memoranda, drawings,  manuals,
-records,  excerpts  or  derivative  information  deriving  there  from  and  all  other documents or materials
-(³NRWeV´) (aQd all cRSieV Rf aQ\ Rf Whe fRUegRiQg, iQclXdiQg ³cRSieV´ WhaW haYe beeQ cRQYeUWed WR
-computerized media in the form of image, data or word processing files either manually or by image capture)
-based on or including any JEA Confidential Information, in whatever form of storage or retrieval, upon the
-earlier of ±
-I.
-the completion or termination of the dealings between the parties contemplated
-hereunder; or
-II.
-the termination of this Agreement; or
-III.
-at such time as JEA may so request; provided however that the Recipient may retain
-such of its documents as is necessary to enable it to comply with its statutory
-document retention policies.
-Alternatively, the Recipient, with the written consent of JEA may (or in the case of Notes, at the Recipient¶V
-option) immediately destroy any of the foregoing embodying JEA Confidential Information (or the
-reasonably non-recoverable data erasure of computerized data) and, upon request, certify in writing such
-destruction by an authorized officer of the Recipient supervising the destruction). JEA reserves the right to
-require evidence supporting such an activity.
-10.
-Notice of Breach.  The Recipient shall notify the Discloser immediately upon discovery that any
-Confidential Information has been communicated or distributed to any unauthorized person or entity and will
-cooperate with efforts by the Discloser to help the Discloser regain possession of Confidential Information
-and prevent its further unauthorized use.
-11.
-No Warranty.
-The Discloser shall have no liability to the Recipient or the Representatives resulting from any use of
-the Confidential Information.  The Discloser shall have sole responsibility for providing the Confidential
-Information necessary for Recipient WR SeUfRUP iWV RbligaWiRQV XQdeU Whe SaUWieV¶ AgUeePeQWV.
-12.
-Miscellaneous.
-a. This Agreement:
-i.
-is the complete agreement of the parties concerning the subject matter hereof and
-supersedes any prior such agreements with respect to further disclosures on such subject
-matter;
-ii.
-may not be amended or in any manner modified except in writing signed by the parties;
-iii.
-shall be governed and construed in accordance with the laws of the State of Florida without
-regard to its conflict of law provisions; and
-iv.
-shall be binding upon and inure to the benefit of the parties and their respective successors,
-assigns and designees.
-Revised January 29th, 2019
-6
-b. The Federal and state courts located in Duval County, Florida shall have sole and exclusive
-jurisdiction over any disputes arising under this Agreement. If any provision of this
-Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible
-and the unenforceable provision shall be deemed modified to the limited extent required to
-permit its enforcement in a manner most closely representing the intention of the parties as
-expressed herein.  Any failure by the Discloser to enforce the strict performance of any
-provision of this Agreement will not constitute a waiver of its right to subsequently enforce
-such provision or any other provision of this Agreement.
-c. Any notices required or permitted to be given hereunder may be delivered by hand,
-deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by
-certified mail, return receipt requested, postage prepaid, in each case, to the address of the
-other party first indicated above.  All such notices or communications shall be deemed to
-have been given and received (a) in the case of personal delivery or electronic-mail, on the
-date of such delivery, (b) in the case of delivery by a nationally recognized overnight
-carrier, on the third business day following dispatch and (c) in the case of mailing, on the
-seventh business day following such mailing.
-IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
-above written.
-JEA
-Recipient
-By __________________________
-By __________________________
-Name:
-Name:
-Title:
-Title:

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@@ -1,211 +0,0 @@
-Bosch North America Mutual NDA rev. 2017.03.31.IPR-NA
-Page 1 of 4
-MUTUAL NON-DISCLOSURE AGREEMENT
-Between
-AND
-, 2017
- , 2017  to
-Subject Matter:
-Effective Date of Agreement: Period
-for Exchange of Information:
-Period of Confidentiality:
-____________________________________________________
-THIS AGREEMENT is made as of the Effective Date of Agreement noted above, by and between the above parties.
-BACKGROUND:
-I.
-The parties desire to have discussions of or relating to the Subject Matter for the purposes of evaluating a possible
-business relationship between them (“Purpose”). The parties may extend the Subject Matter or add additional
-parties by executing one or more addenda to this Agreement.
-II.
-Such discussions may involve disclosure by one party to the other party of confidential, proprietary or trade secret
-information of its own or its licensors (“Confidential Information” as defined below), during the Period for Exchange
-of Information.
-III.
-Both parties recognize the value of the Confidential Information and that it is in their mutual best interests to
-maintain the confidential, proprietary and secret nature of the Confidential Information.
-THEREFORE, in consideration of the Subject Matter, and the mutual promises herein, the parties agree as follows:
-1.
-CONFIDENTIAL INFORMATION.  The term “Confidential Information” as used herein means all nonpublic
-information relating to the Subject Matter that is disclosed by either party, its Affiliates (as defined below), or their
-agents (where applicable, collectively referred to as the “Disclosing Party”), directly or indirectly, in writing, orally
-or by inspection of premises or tangible objects to the other party (the “Recipient”) that is: (i) marked
-confidential or proprietary, or (ii) given the nature of the information or the circumstances surrounding its disclosure,
-reasonably should be deemed confidential.  Confidential Information includes, but is not limited to documents,
-drawings, models, apparatus, sketches, designs, schedules, product plans, marketing plans, technical procedures,
-manufacturing processes, software, prototypes, samples, methodologies, formulations, trade secrets, patent
-applications, know-how, experimental results, specifications and other business information.
-2.
-PERIOD OF CONFIDENTIALITY AND NON-USE.  The Recipient will use Confidential Information only in
-connection with the Purpose as set forth in this Agreement.  Recipient shall use the same degree of care to avoid
-disclosure or use of the Confidential Information as it uses for its own confidential, proprietary and trade secret
-information, but in no case use less than a reasonable degree of care. Recipient agrees to limit disclosure of
-Confidential Information to employees and employees of Affiliates having a specific need to know such Confidential
-Information for the Purpose and in the case of Affiliates only to the extent that such Affiliate is under obligation to
-hold such information in confidence and is made aware of these terms and conditions. Recipient will not disclose or
-permit access to Confidential Information to contract workers, consultants or contractors of Recipient or its Affiliates
-unless authorized by Disclosing Party in writing and on condition that such persons are bound by obligations of
-confidentiality inuring to the benefit of Disclosing Party and its Affiliates at least as restrictive as these terms and
-conditions.  Recipient shall not without Disclosing Party’s prior written consent reverse engineer, disassemble or
-decompile any prototypes, software or other objects which embody the Disclosing Party’s Confidential Information
-to obtain access to Disclosing Party’s trade secrets and to the extent such consent is granted Recipient shall
-receive and hold such Confidential Information subject to the terms of this Agreement.
-Bosch Automotive Service Solutions Inc.
-28635 Mound Road
-Warren, Michigan 48092
-Insert Full Corporate Name and Address of Counterparty
-Insert Field and Scope of Technology
-Date
-Date 2
-Date 3
-Period of Confidentiality
-Bosch North America Mutual NDA rev. 2017.03.31.IPR-NA
-Page 2 of 4
-3.
-TERM.  The term of this Agreement shall be for the Period of Exchange set forth above.  Confidentiality obligations
-shall survive termination of this Agreement for the Period of Confidentiality set forth above unless the Confidential
-Information is a trade secret, in which case the confidentiality obligations shall continue for as long as the
-information is a trade secret.  Either party may terminate this Agreement upon 30 days prior written notice.
-4.
-NOTICE OF UNAUTHORIZED USE.  Recipient shall provide written notice to Disclosing Party without undue delay
-of any misuse or misappropriation of Confidential Information which may come to the attention of Recipient.  The
-Recipient shall cooperate with and aid the Disclosing Party in mitigating and preventing the unauthorized use and
-disclosure and any furtherance thereof.
-5.
-EXCLUSIONS AND EXEMPTIONS.  Recipient shall have no obligation of confidentiality with respect to any
-information which:
-5.1.
-is already known or in the possession of Recipient or its Affiliate at the time of disclosure as shown by the
-Recipient’s and/or its Affiliates´ files and records prior to the time of disclosure, otherwise than as a result of
-any improper act or omission of Recipient or its Affiliate; or
-5.2.
-is or becomes public knowledge through no wrongful act of Recipient; or
-5.3.
-is rightfully acquired from others who did not obtain it under obligation of confidentiality; or
-5.4.
-is independently developed by an employee, agent or consultant of Recipient without reference to the
-Confidential Information; or
-5.5.
-is approved for release by written authorization from Disclosing Party.
-5.6.
-The Recipient is hereby notified that, as set forth in 18 U.S.C. §1833(b), he/she does not have criminal or
-civil liability under U.S. trade secret law for the following disclosures of a trade secret:
-5.6.1. disclosure in confidence to a federal, state or local government official, either directly or indirectly, or
-to an attorney, provided the disclosure is for the sole purpose of reporting or investigating a
-suspected violation of law; and/or
-5.6.2. disclosure in a complaint or other document filed in a lawsuit or other proceeding if such filing is
-made under seal; and/or
-5.6.3. under those circumstances where Recipient files a lawsuit for retaliation against the Disclosing Party
-for reporting a suspected violation of law, Recipient may disclose the Disclosing Party’s trade secret
-information to its attorney and may use the trade secret information in the court proceeding if
-Recipient files any document containing the trade secret under seal and does not disclose the trade
-secret, except pursuant to court order.
-6.
-REPRODUCTION AND RETURN OF CONFIDENTIAL INFORMATION. The Confidential Information provided by
-the Disclosing Party shall not be copied or reproduced without the Disclosing Party’s prior written permission,
-except for such copies as may reasonably be required for the purpose as set forth in Section I of this Agreement.
-Disclosing Party may serve written request on Recipient for return or destruction  of its Confidential Information at
-any time up to six (6) months after the termination or expiry of this Agreement and Recipient shall, within thirty (30)
-days of such request or termination, return to the Disclosing Party (or its designees) or certify as destroyed all
-Confidential Information, in whatever form, including written or electronically recorded information and all copies
-thereof (other than copies retained in automatic back-up and archive systems), provided however that Recipient
-shall be entitled to retain one copy of the Confidential Information with its legal counsel or other appropriate
-corporate representative to evidence the exchange of information hereunder and in connection with legal or
-statutory requirements. All such retained copies shall remain subject to the use and disclosure restrictions in this
-Agreement.
-7.
-DISCLOSURES REQUIRED BY LAW.  If Recipient is requested, ordered or required by a regulatory agency or any
-other government authority or a court to disclose any Confidential Information, Recipient shall promptly notify
-Disclosing Party of such request, order or requirement so that Disclosing Party may have the opportunity to contest
-the disclosure, including seeking a protective order, or waive Recipient’s compliance with this Agreement.  If
-Recipient is (in the opinion of its counsel) compelled to disclose any Confidential Information, or else be liable for
-contempt or other penalty or be subject to claims from a third party, Recipient may disclose such Confidential
-Information without liability under this Agreement.
-8.
-EXPORT LAWS.  Neither party shall export, directly or indirectly, any of the Confidential Information to any country,
-person or entity which the US Government, at the time of export, requires an export license or other governmental
-approval without first obtaining such license or approval.  The Recipient shall first obtain the written consent of
-Bosch North America Mutual NDA rev. 2017.03.31.IPR-NA
-Page 3 of 4
-Disclosing Party prior to submitting any request for authority to export such Confidential Information. For the
-purposes of this Agreement, export occurs when Confidential Information is transferred from one country to another
-by any means, including but not limited to physical shipments, FTP file transfers, e-mails, faxes, oral transfers or
-remote server access and an export may also occur when Confidential Information is transferred to or accessed by
-a person who is neither a citizen nor permanent resident of the country in which such transfer or access is taking
-place.
-9.
-OWNERSHIP OF CONFIDENTIAL INFORMATION.  Disclosing Party or its licensors, as the case may be, retain all
-rights in Confidential Information disclosed and all documents, prototypes, software development kits (SDKs) and
-other similar tangible property embodying, containing or reflecting the same shall remain the property of Disclosing
-Party.
-10. NO LICENSE.  Neither the execution of this Agreement nor the disclosure of any Confidential Information is
-construed as granting either expressly or by implication, estoppel or otherwise, any license or right to the
-Confidential Information or any intellectual property rights embodied therein.
-11. NO WARRANTY.  All Confidential Information provided under this Agreement is provided “AS IS” and specifically
-excludes any warranty, whether express or implied, including without limitation, any implied warranty of
-merchantability, fitness for a particular purpose, or accuracy.  The Disclosing Party is not liable under this
-Agreement for any damages in connection with, related to, or arising out of the use of its Confidential Information.
-12. NO OBLIGATION.  This Agreement shall not be construed in any manner to be an obligation to enter into a further
-substantive contract or to disclose any particular Confidential Information.
-13. INDEPENDENT DEVELOPMENTS.  Disclosing Party understands that Recipient may develop or have developed
-information internally, or receive or have received information from other parties that is similar to the Confidential
-Information.  Accordingly, nothing in this Agreement shall be construed as a representation that Recipient has not
-or will not independently develop products that compete with the products or systems contemplated by the
-Confidential Information provided that it does so without breaching the terms of this Agreement.
-14. RELATIONSHIP.  Each party hereto shall be considered as an independent contractor responsible for its own
-expenses and financial obligations incurred in the performance of this Agreement.
-15. NO WAIVER.  Neither party waives any rights in invention or development lawfully possessed by it at the time of
-signing this Agreement.  In addition, this Agreement does not imply any waiver of any rights or action under the
-patent, trademark, copyright, trade secret, unfair competition, fair trade or related laws.  Failure to exercise any
-rights under this Agreement shall not be construed as a waiver of such rights.
-16. INUREMENT.  This Agreement shall inure to the benefit of the parties hereto and their respective “Affiliates” (as
-defined below), successors, assigns and legal representatives.  The parties agree that each party and its Affiliates
-may receive Confidential Information from and/or disclose Confidential Information to the other party and the other
-party's Affiliates, and that all such Confidential Information shall be governed by this Agreement.  Recipient shall be
-fully responsible to the Disclosing Party for any breach of this Agreement by the Recipient’s Affiliates.  “Affiliate”, as
-used herein, means an entity that directly or indirectly controls, is controlled by or is under common control with a
-party to this Agreement; and as used in this Section ”control”, “controls” or ”controlled” means: (i) fifty-one percent
-(51%) or more ownership or beneficial interest of income or capital of such entity; (ii) ownership of at least fifty-one
-percent (51%) of the voting power or voting equity; or (iii) the ability to otherwise direct or share management
-policies of such entity.
-17. INJUNCTIVE RELIEF.  The parties agree that any use of Confidential Information in violation of this Agreement
-may cause the other party irreparable harm, and may leave it with no adequate remedy at law and shall, thereby,
-entitle it to seek injunctive relief in any court with competent jurisdiction over the party or party’s Affiliate in violation.
-18. CHOICE OF LAW.  This Agreement is governed and construed in accordance with the laws of the State of
-Michigan, without regard to principles of conflict or choice of laws.  The Parties hereby unconditionally and
-irrevocably agree to submit to the exclusive jurisdiction of the state and federal courts of the State of Michigan.
-19. SURVIVAL.  Sections 1, 2, 3, 4, 5, 6, 17, 18, 19 and any sections (or parts thereof) which, by their nature, are
-intended to survive termination shall survive termination of this Agreement.
-20. SEVERABILITY.  If a court finds any provision of this Agreement or any right or obligation invalid or unenforceable,
-this Agreement shall be immediately deemed amended to: (i) include a provision that reflects the intent of the
-parties, or, if (i) is not possible, (ii) to exclude such provision and the parties shall negotiate in good faith a
-substitute provision that reflect the parties’ intent at the time of entering into the Agreement.
-Bosch North America Mutual NDA rev. 2017.03.31.IPR-NA
-Page 4 of 4
-21.
-ENTIRE AGREEMENT.  This Agreement contains the entire understanding between the parties regarding the
-Confidential Information and supersedes all other communications, reports or understandings between the parties
-in respect thereto.  No change or addition to any provision shall be binding unless it is in writing and signed by an
-authorized representative of both parties.  All notices shall be in writing and delivered by electronic mail, registered
-or certified mail (return receipt requested) to the appropriate address set forth in the signature block below.
-22.
-HEADINGS.  Headings in this Agreement are for reference only and shall not affect the meaning of the provisions.
-23.
-COUNTERPARTS.  This Agreement may be signed in two or more counterparts including signing facsimile copies.
-Each counterpart is deemed an original and all counterparts together shall constitute one and the same instrument.
-IN WITNESS WHEREOF, the parties hereto have caused their authorized representatives to execute this Agreement as
-of the date first written above.
-Signature:
-Signature:
-Print Name:
-Print Name:
-Title:
-Title:
-Date:
-Date:
-Signature:
-Print Name:
-Title:
-Date
-Insert Full Name of Conterparty
-Bosch Automotive Service Solutions Inc.

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-1/5
-OISAIR PROJECT
-TWO-WAY CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
-(TO BE SIGNED ELECTRONICALLY THROUGH THE INNOVAIR PLATFORM)
-This Confidentiality and Non-Disclosure Agreement (hereinafter referred to as the “Agreement”)
-dated ………………………. (“Effective Date”) is made by and between:
-1) <Research institution name> with registered offices located in
-……………………………,
-Tax
-registration No ………, represented by ………………………………….., in the legal capacity as
-…………………….. Hereinafter referred to as “………………..”
-2) <Company name> with registered offices located in ………………………….. Tax registration No.
-……………, represented by …………………………., in the legal capacity as …………………………..
-Hereinafter referred to as “………………..”
-The above parties hereinafter collectively referred to as the “Parties” and individually as a
-“Party”.
-WHEREAS
-The Parties are willing to exchange Confidential Information in the form of certain scientific,
-technical and commercial information, that will include confidential and proprietary material
-relating to ………………… (the “Field”) and the Receiving Party may use this Confidential
-Information for the sole consideration of assessing whether to enter into a potential or proposed
-business collaboration with the Disclosing Party for the joint development of the technology
-………………………… (the “Permitted Purpose”) subject to the terms and conditions of this
-Agreement.
-IT IS AGREED as follows:
-1. Definition and interpretation
-In this Agreement, the following terms will have the respective meanings:
-“Confidential Information” shall mean scientific, research, technical or business information
-pertaining to the Field, including but not limited to inventions; know-how; trade secrets;
-techniques; processes; designs; drawings; product designs; formulae and analysis; and any
-business information, including but not limited to price lists; customer lists; cost analyses;
-reports; surveys, market information and data.
-In respect of Confidential Information disclosed in documentary form, model or any other
-tangible form, this shall be marked by the Disclosing Party as confidential or otherwise
-designated to show expressly or by necessary implication that it is imparted in confidence. Any
-Confidential Information disclosed by the Disclosing Party or its Representatives orally or visually,
-shall be identified as such prior to disclosure and summarized in a writing provided by the
-Disclosing Party to the Receiving Party within thirty (30) days of the date of initial disclosure. In
-2/5
-case of disagreement regarding said summary, the Receiving Party shall make any objections in
-writing within thirty (30) days of receipt of the written summary.
-“Disclosing Party” shall mean the Party that discloses Confidential Information directly or
-indirectly to the Receiving Party in relation to this Agreement.
-“Receiving Party” shall mean the Party that receives the Confidential Information directly or
-indirectly from the Disclosing Party.
-“Representatives” shall mean directors, employees, professional advisors or anyone involved
-with the Party in a professional or business capacity.
-2. Exclusions
-The obligation of confidentiality set out in this Agreement shall not apply to any Confidential
-Information that:
-a)
-was known to the Receiving Party prior to such disclosure by the Disclosing Party, as
-evidenced by documentary or other physical evidence;
-b)
-was public knowledge at the time of such disclosure to the Receiving Party, or becomes
-public knowledge after such disclosure, through no action or omission by or on behalf of the
-Receiving Party;
-c)
-is lawfully disclosed or made available to the Receiving Party by a third party having no
-obligation to the Disclosing Party to maintain the confidentiality of such information;
-d)
-was independently developed or derived by the Receiving Party without the aid, application
-or use of information furnished by the Disclosing Party, as evidenced by documentary or
-other physical evidence;
-e)
-is disclosed with the written consent of the Disclosing Party;
-f)
-is required to be disclosed by the order of a governmental agency or legislative body or a
-court of competent jurisdiction.
-3. Obligations of confidentiality and non-use
-The Receiving Parties undertake and agree:
-a)
-To take proper and reasonable measures to ensure the secrecy of the Confidential
-Information;
-b)
-Not to disclose, or allow it to be disclosed, in whole or in part to any third party without the
-prior written consent of the Disclosing Party
-c)
-Not to use, in whole or in part, the Confidential Information for anything other than the
-Permitted Purpose.
-d)
-Not to use the Confidential Information for their own commercial use or for that of any
-other person or party, without prior written consent by the Disclosing Party;
-e)
-Not to make copies of the Confidential Information in any format without prior written
-authorisation by the Disclosing Party;
-f)
-Not to alter, modify, disassemble, reverse engineer or decompile any Confidential
-Information;
-g)
-Not to apply for any patent or trademark which could include any Confidential Information.
-4. Disclosure to Representatives
-The Parties shall use at least the same degree of care as the Receiving Party normally exercises to
-protect its own information of like character and importance, but in no event less than
-3/5
-reasonable care. The Receiving Party undertakes to permit access to the Confidential Information
-only to its Representatives or employees who require access to such Information solely for the
-fulfilment of the Permitted Purpose, and furnished on a need-to-know basis and only on the
-condition that such persons are made aware of the terms of this Agreement and their obligations
-therein, along with the Disclosing Party’s rights to the Confidential Information. The Receiving
-Party shall be responsible for ensuring its Representatives comply with the terms of this
-Agreement.
-5. Return of information and property
-The Receiving Party acknowledges and agrees that the Confidential Information is and remains
-the property of the Disclosing Party. The Receiving party must, at the end of this Agreement or
-within seven days following written instruction by the Disclosing Party to do so, return or destroy
-all Confidential Information in the Receiving Party's possession, custody or control. The Receiving
-Party may retain one (1) copy of any such Confidential Information to be stored securely with its
-legal representative only if required for regulatory or insurance purposes, but in this event the
-confidentiality and non-use provisions in this Agreement remain in place with respect to such
-retained Confidential Information. The return or destruction of any Confidential Information will
-not diminish or otherwise affect any other obligations under this Agreement.
-6. No implied rights
-This Agreement shall not grant, nor be construed to grant any rights whatsoever beyond the
-scope of the Permitted Purpose of the Confidential Information to the Receiving Party. This
-includes, but it not limited to any license, patent or copyright. No warranty, express or implied, is
-given as to the accuracy or completeness of any Confidential Information provided by the
-Disclosing Party.
-7. No obligation
-This Agreement imposes no contractual obligation to any Party to enter into any separate
-business collaboration for the development of the Field or associated technology. The Disclosing
-Party is not obliged to disclose any Confidential Information to the Receiving Party and the
-Receiving Party shall have the right to refuse to accept any information prior to any disclosure.
-8. Breach
-In the event of a breach or threatened breach of the terms of this Agreement by the Receiving
-Party, the Disclosing Party will be entitled to seek an injunction (final or interlocutory) restraining
-the Receiving Party from committing a breach, or further breach, of this Agreement without the
-requirement to demonstrate any actual damage sustained by the Disclosing Party.
-9. Integration
-This Agreement constitutes the entire understanding between the Parties concerning the
-treatment of information to which this Agreement relates. No modification of this Agreement
-shall be binding on either Party unless agreed in writing and signed by all the Parties.
-10. Duration
-This Agreement shall terminate 5 (five) years after the Effective Date (the “Termination Date”).
-Notwithstanding this, any Party may terminate its involvement with this Agreement by giving 30
-(thirty) days written notice (registered letter with proof of receipt) to the other Parties.
-Termination of this Agreement shall not affect any obligation imposed by this Agreement with
-4/5
-respect to Confidential Information disclosed prior to termination, the obligations of non-use and
-non-disclosure of Confidential Information shall survive for 3 (three)  years from the date of
-disclosure of the Confidential Information. After the term of this Agreement has ended, the
-Disclosing Party does not relinquish any other rights that it may have under copyright, patent, or
-other intellectual property laws.
-11. Agreement in counterparts
-This Agreement shall be executed in three identical counterparts, each of which shall be deemed
-to be an original and all of which taken together shall be deemed to constitute the same
-agreement when a duly authorised representative of each Party has signed all the counterparts.
-12. Applicable Law and Jurisdiction
-This Agreement shall be governed by and construed in accordance with the Laws of the Republic
-of Italy without regard to Italy’s conflicts of law rules. Any disputes or claim arising out of or in
-connection with this Agreement shall be submitted to the sole competence and jurisdiction of
-the ordinary Courts of Trieste.
-13. Successor and assigns
-The Parties agree that this Agreement and any subsequent amendments shall be binding on their
-successors in title and assigns, and undertake the necessary steps to ensure they are so bound.
-14. Third parties
-This Agreement does not create any right enforceable by any person not a Party to it.
-15. Communications
-Any notice or other communication made or given by any Party in connection with this
-Agreement shall be sent via fax (with confirmation) or by registered or certified mail or courier
-service addressed to the other Party at its address set forth below:
-<Party>
-<address>
-For the attention of
-<contacts>
-<Party>
-<address>
-For the attention of
-<contacts>
-or such other address that each Party may from time to time notify in writing to the other Party
-in case of changes of the above addresses.
-The communications will be deemed to be made at the effective date of receipt.
-16. Secrecy
-The existence of this Agreement cannot be disclosed to any third party. It is thus forbidden to
-make any oral and/or written disclosure (advertising, publication, or any other kind of external
-5/5
-communication) of this Agreement being in force nor of the potential co-operation that could be
-subsequently negotiated, without prior and written authorisation of all Parties.
-Agreed by the Parties through their authorised signatories
-For and on behalf of
-<Party>
-Signed
-Name
-Date
-For and on behalf of
-<Party>
-Signed
-Name
-Date

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-exv99wxdyx3y
-EXHIBIT(d)(3)
-CONFIDENTIAL DISCLOSURE AGREEMENT FOR STRATEGIC MATTERS
-This Confidential Disclosure Agreement (“Agreement”) is entered into as of the effective
-date listed below (“Effective Date”) by Oracle Corporation (“Oracle”) located at 500 Oracle
-Parkway, Redwood City, California 94065 and the company designated below (“Company”).
-Oracle and
-the Company are entering into discussions concerning a possible strategic transaction
-(the “Transaction”). The parties expect to make available to one another certain non-public,
-confidential and/or proprietary information, both oral and written, which may include information
-concerning their respective business prospects and plans, financial condition, technology,
-customers, know-how, trade secrets, operations, assets and liabilities (collectively, the
-“Evaluation Material”). As a condition to each party furnishing the Evaluation Material to the
-other party and the directors, officers, employees, agents or advisors of such party or its
-subsidiaries (collectively, “Representatives”), each party
-agrees that the Evaluation Material
-furnished to it hereunder shall be treated as confidential subject to
-the terms of this Agreement.
-1. Evaluation Material. “Evaluation Material” also includes notes, analyses,
-compilations, studies, plans, interpretations or other documents prepared
-by the receiving party or its Representatives which contain or are based
-upon the Evaluation Material furnished to such party hereunder. The term
-“Evaluation Material” does not include information that (i) is or becomes a
-matter of public knowledge through no fault of the receiving party; (ii) is or
-becomes available to the receiving party from a source other than the
-disclosing party or any of its Representatives, provided that such source
-was not known or reasonably should be known by the receiving party to be
-bound by a duty of confidentiality with respect to such information; (iii) is
-disclosed by the disclosing party to a third party without a duty of
-confidentiality; (iv) is independently developed by the receiving party
-without use of the Evaluation Material; or (v) is disclosed under operation
-of law.
-2.
-Non-Disclosure/Security/Use. Each party agrees that, without the prior
-written consent of the other party, neither it nor its Representatives will
-disclose to any other person any of the other party’s Evaluation Material,
-the fact that discussions between the parties are taking place concerning
-the Transaction, or any terms or other facts relating to the Transaction and
-will use such Evaluation Materials only for the purpose of evaluating a
-Transaction. Each party agrees to use reasonable measures to protect
-against the loss, theft or unauthorized use of the Evaluation Materials.
-3.
-Personally Identifiable Information. The Evaluation Materials may
-include human resources data and/or other information that serves to
-identify one or more individuals (“PII”). The receiving party agrees to notify
-the disclosing party of any request received by the receiving party for
-access, correction, amendment or redaction of any PII. The disclosing
-party shall be responsible for compliance with all such requests. The
-receiving party also agrees to notify the disclosing party of any actual or
-suspected improper acquisition of PII of which the receiving party becomes
-aware.
-4.
-Residuals. Nothing in this Agreement shall be construed to limit either
-party’s ability to use “residuals” relating to the Evaluation Material of the
-other party. The term “residuals” shall mean information included in the
-Evaluation Material in nontangible form (i.e., not written or other
-documentary form, including tape or disk), which is incidentally retained in
-the memories of employees of either party who have had access to the
-Evaluation Material, including ideas, know-how, or techniques contained
-therein, and where the source of the Evaluation Material has become
-remote (e.g., as a result of the passage of time or the employee’s
-subsequent exposure to information of a similar nature from other sources)
-that the employee in good faith believes that it is not Evaluation Material.
-Neither party shall have any obligation to limit or restrict the assignment of
-its employees or to pay royalties to the other party in connection with any
-use of residuals.
-5. Independent Development. Nothing in this Agreement shall be
-construed to limit or preclude either party from developing, using,
-marketing, licensing, and/or selling any independently developed software,
-technology or other materials similar or related to the Evaluation Material
-without otherwise violating this Agreement.
-6. Required Disclosure. In the event that a party or its Representatives is
-required by Law, rule or stock exchange regulation to disclose any of the
-other party’s Evaluation Material or the fact that discussions between the
-parties are taking place concerning the Transaction, the party required to
-make such disclosure shall, to the extent practicable, provide the other
-party with prior written notice of any such requirement so that the other
-party may seek a protective order or other appropriate remedy and/or
-waive compliance with the provisions of this Agreement. In the event
-that
-such protective order, other remedy or waiver is not obtained, the party
-required to make the disclosure shall furnish only that portion of the
-Evaluation Material that such party determines, alter consulting with
-counsel, is required to disclose and shall exercise all reasonable efforts to
-preserve the confidentiality of the other party’s Evaluation
-Material.
-7. Termination of Discussions. This Agreement and all rights and obligations
-hereunder shall terminate on the second anniversary of the Effective Date.
-Promptly upon notice from either party that it does not wish to proceed with
-the Transaction, each party shall return to the other party or destroy all
-copies of the Evaluation Material (including all documents based thereon)
-in its possession or in the possession of its Representatives, except that
-outside counsel to the receiving party may retain one copy of the
-Evaluation Material for archival purposes and solely to comply with
-applicable law, rule or regulation. Notwithstanding the return or destruction
-of the Evaluation Material, each party and its Representatives will continue
-to be bound by its obligations of confidentiality and other obligations
-hereunder for a period ending on the second anniversary of the Effective Date.
-8. Definitive Agreements. Unless and until a final definitive agreement,
-regarding the Transaction has been executed, no contract or agreement
-with respect to the Transaction shall be deemed to exist between the
-parties and neither party will be under any legal obligation whatsoever with
-respect to the Transaction by virtue of this Agreement except for the
-matters specifically agreed to herein. The term “definitive agreement”
-does not include a term sheet or any other preliminary written agreement.
-Each party reserves the right, in its sole discretion, to provide or
-not
-provide Evaluation Material under this Agreement, to reject any and
-all
-proposals with regard to the Transaction and to terminate discussions and
-negotiations at any time.
-9. Entire Agreement. This Agreement sets forth the entire agreement
-with respect to the Evaluation Material disclosed hereunder and
-supersedes all prior or contemporaneous agreements concerning such
-Evaluation Material, whether written or oral. All additions or modifications
-to this Agreement must be made in writing and must be signed by both
-parties.
-10. Miscellaneous. Each party agrees to be responsible for any breach of
-this Agreement by any of its Representatives. In case any provision of this
-Agreement shall be. invalid, illegal or unenforceable, the validity, legality
-and enforceability of the remaining provisions of the Agreement shall not in
-any way be affected or impaired thereby,
-11. Governing Law, Jurisdiction. This Agreement and all matters arising
-out of or relating to this Agreement shall be governed by the procedural
-and substantive laws of the state of California and shall be deemed
-executed in Redwood City, California. Any legal action or proceeding
-relating to this Agreement shall be instituted exclusively in any state or
-federal court In San Francisco or San Mateo County, California. Company
-and Oracle irrevocably and unconditionally agree to submit to the exclusive
-jurisdiction of, and agree that the venue is proper in, the aforesaid courts in
-any such legal action or proceeding.
-12.
-Relief. Each party agrees that money damages will not be a sufficient
-remedy for any breach of this Agreement by it or its Representatives, and
-that the other party is entitled specific performance and injunctive relief as
-remedies for any such breach. Such remedies shall not be deemed to be
-exclusive remedies for a breach of this Agreement but shall be in addition
-to all other remedies available at law or equity.
-ORACLE CORPORATION
-HYPERION SOLUTIONS CORPORATION
-By:
-/s/ Douglas Kehring
-By: /s/ Mark Cochran
-Name: Douglas Kehring
-Name: Mark Cochran
-Title: Authorized Signatory
-Title: VP & General Counsel
-Effective Date: Jan. 2, 2007
-Address: 5450 Great America Pkway

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-EX-99.D.3
-MUTUAL NON-DISCLOSURE AGREEMENT
-     THIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the
-“Effective Date”), is between Magic Hat Brewing Company & Performing Arts Center, Inc., a
-Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington corporation (“Pyramid”).
-Pyramid and the Company are sometimes referred to in this Agreement individually as a
-“Party” and collectively as the “Parties”.
-     WHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files
-reports and proxy materials under the Securities Exchange Act of 1934, which are publicly
-available.
-     WHEREAS, the Parties wish to exchange certain nonpublic confidential business information for
-purposes of engaging in preliminary discussions regarding and evaluating a possible strategic
-merger, acquisition or business combination between the Parties (the “Business Purpose”).
-     NOW THEREFORE, the Parties agree as follows:
-     1. Definition of Confidential Information. The term “Confidential Information” means
-any and all information that is or has been received by either Party (the “Recipient”) from
-the other Party (the “Disclosing Party”), or which the Recipient has had access to, during
-the four (4)-month period commencing on the Effective Date (the “Term”), and that is either
-(a) marked as “confidential,” “proprietary,” or such similar term, or (b) non-public information
-related to the Disclosing Party’s business, which the Receiving Party should reasonably know is
-confidential based on the nature of such information. Without limiting the generality of the
-foregoing, Confidential Information shall include the following, whether in tangible or electronic
-form: business plans, customer database information, employee and independent contractor lists,
-internal reports and investigations, research and work in progress, source and object code,
-technical manuals, financial statements and projections, cost summaries and pricing formulae,
-algorithms, confidential filings with any international, federal or state agency, and all other
-information concerning methods of doing business, ideas and inventions (whether or not patentable),
-and data that derives independent economic value, actual or potential, from not being generally
-known to persons who can obtain economic value from its disclosure or use that is the subject of
-reasonable efforts by the Company to maintain its secrecy.
-     2. Excluded Information. Confidential Information shall not include any information that: (a)
-prior to its disclosure by the Disclosing Party is already lawfully and rightfully known by or
-available to the Recipient as evidenced by prior written records; (b) through no wrongful act,
-fault or negligence on the part of the Recipient is or hereafter becomes part of the public domain;
-(c) is lawfully received by the Recipient from a third party without restriction and without breach
-of this agreement or any other agreement; (d) is approved for public release or use by written
-authorization of the Disclosing Party; (e) the Recipient can demonstrate was independently
-developed by it without reference to the Disclosing Party’s Confidential Information; or (f) is
-disclosed pursuant to the requirement or request of a governmental agency or court of competent
-jurisdiction to the extent such disclosure is required by a valid law, regulation or court order
-and sufficient notice is given by the Recipient to the Disclosing Party of any such requirement or
-request in order to permit the Disclosing Party to seek an appropriate protective order or
-exemption from such requirement or request.
-     3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential
-Information except for the Business Purpose, or (b) disclose or make the Confidential Information
-available to any person or entity (other than Related Parties, as defined below) without the prior
-written consent of the Disclosing Party. Each Party shall take reasonable security precautions to
-protect the Confidential Information, at least as strict as the precautions it takes to protect its
-own confidential and proprietary information of a similar nature. Without the prior written
-consent of the Disclosing Party, the Recipient of Confidential Information shall restrict the
-disclosure and availability of Confidential Information to Recipient’s financial, tax, or legal
-advisors, or to its directors, officers, or employees with a demonstrable need to know such
-Confidential Information (each, a “Related Party”, and, collectively, the “Related
-Parties”), provided that any such Related Party either agrees to be bound by this Agreement or
-is already bound by confidentiality obligations no less restrictive than those in this Agreement.
-Each Party shall be responsible for the breach of this Agreement by any Related Party. Neither
-Party shall use any Confidential Information received by it to develop a product or service which
-competes with or imitates products of the Disclosing Party or engage in reverse engineering to
-develop similar products or services using the Confidential Information (it being acknowledged and
-understood that both Parties are engaged in the business of beer brewing and that competing beer
-products are regularly independently developed within the beer industry using the same or similar
-raw materials, processes and packaging). The Recipient shall prevent commingling of the
-Confidential Information with similar information or material of other third parties. The
-obligations of confidentiality and protection under this Agreement shall survive for three (3)
-years following the expiration of the Term.
-     4. Non-Solicitation. Other than through general employment listings and advertising or
-through the efforts of employment search firms, each Party shall not, during the Term of this
-Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or
-independent contractor of the other Party, or induce any such person to abandon their relationship
-with the other Party.
-     5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY
-HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY,
-SUITABILITY OR NON-INFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.
-     6. No License or Obligations; Return of Confidential Information. This Agreement does not
-represent nor imply any agreement or commitment to enter into any further business relationship.
-This Agreement does not create any agency or partnership relationship between the Parties or
-authorize a Party to use the other Party’s name or trademarks. As between the Parties, all
-Confidential Information received by a Recipient shall remain the sole and exclusive property of
-the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall return to
-the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all
-tangible or electronic forms of Confidential Information, including any and all copies of the
-Confidential Information or notes containing the Confidential Information, and shall provide a
-written certification to the Disclosing Party that all tangible forms of the Confidential
-Information have been returned or destroyed.
-     7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy
-any breach of this Agreement. As a result, a non-breaching party shall be entitled to seek, and a
-court of competent jurisdiction may grant, specific performance and
-2
-injunctive or other equitable relief as a remedy for any breach of this Agreement. Such
-remedy shall be in addition to all other remedies, including money damages, available to a
-non-breaching party at law or in equity.
-     8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by
-registered mail, return receipt requested, or reputable overnight courier to the addresses listed
-below (or such address changed by the giving of like notice to the other Party), and shall be
-deemed received upon actual receipt by the recipient Party.
-     9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction,
-validity and performance, shall be governed by, construed and enforced in accordance with the laws
-of the State of Washington, as applied to contracts made and to be fully performed in such state,
-without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state
-and federal courts located in New York, New York. A prevailing Party shall be entitled to an award
-of its reasonable attorneys’ fees and costs arising out of this Agreement.
-     10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto
-with respect to its subject matter, and any and all prior agreements, understandings or
-representations with respect to its subject matter are merged herein. This Agreement may be
-amended and any provision may be waived only by the written agreement of the Parties. The terms and
-conditions of this Agreement shall inure to the benefit of and be binding upon the respective
-successors and assigns of the Parties, provided that Confidential Information of the Disclosing
-Party may not be assigned by the Recipient without the prior written consent of the Disclosing
-Party. If any provision of this Agreement is held by a court of competent jurisdiction to be
-invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining
-provisions shall not in any way be effected, impaired or invalidated thereby. This Agreement may
-be executed in two or more counterparts or by other electronic means, each of which shall be deemed
-an original, and all of which together shall constitute one and the same instrument.
-3
-     IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written
-above.
-PYRAMID BREWERIES INC.,
-MAGIC HAT BREWING COMPANY & PERFORMINGARTS CENTER, INC.,
-a Washington corporation
-a Vermont corporation
-By (signature):
-By (signature):
-Printed Name:
-Printed Name:
-Title:
-Title:
-Address:
-91 South Royal Brougham Way
-Address:
-5 Bartlett Road
-Seattle, WA 98134
-South Burlington, VT 05403
-Fax:
-Fax:
-(802) 658-5788
-4

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-<PAGE>
-                                                                  Exhibit (c)(4)
-                        MUTUAL NON-DISCLOSURE AGREEMENT
-          Each undersigned party (the "Receiving Party") understands that the
-other party (the "Disclosing Party") has disclosed or may disclose information
-relating to the Disclosing Party's business particularly relating to uniform
-informer libraries, chemi-informatic tools and the nature of chemical libraries
-(including, with limitation, names and expertise of employees and consultants,
-know-how, formulas, processes, ideas, inventions (whether patentable or not),
-schematics, computer programs, software code, algorithms, development tools,
-manufacturing capability or processes, chemical routes, chemical structures,
-relationships with other businesses, business plans, and other technical,
-business, financial, customer and product development plans, forecasts,
-strategies and information), which to the extent previously, presently, or
-subsequently disclosed to the Receiving Party is hereinafter referred to as
-"Proprietary Information" of the Disclosing Party.  Proprietary Information also
-includes any information which the Disclosing Party has received from a third
-party which the Disclosing Party is obligated to treat as confidential or
-proprietary.
-          Notwithstanding the foregoing, nothing will be considered "Proprietary
-Information" of the Disclosing Party unless either (1) it is first disclosed in
-tangible form and is conspicuously marked "Confidential", "Proprietary" or the
-like or (2) it is first disclosed in non-tangible form and orally identified as
-confidential at the time of disclosure and is summarized in tangible form
-conspicuously marked "Confidential" within thirty (30) days of the original
-disclosure.
-          In consideration of and solely for the purpose of the parties'
-discussion regarding a possible business transaction and any access the
-Receiving Party may have to Proprietary Information of the Disclosing Party,
-each party (as the Receiving Party) hereby agrees as follows:
-          1.   Non-Disclosure and Non-Use Obligations.  The Receiving Party
-               --------------------------------------
-agrees (i) to hold the Disclosing Party's Proprietary Information in strict
-confidence and to take all reasonable precautions to protect such Proprietary
-Information (including, without limitation, all precautions the Receiving Party
-employs with respect to its most confidential materials), (ii) not to divulge
-any such Proprietary Information or any information derived therefrom to any
-third person (except consultants or agents, subject to the conditions stated
-below), (iii) not to make any use whatsoever at any time of such Proprietary
-Information except to evaluate internally whether to enter into a proposed
-business transaction with the Disclosing Party without the prior written
-permission of the disclosing party, (iv) not to remove or export from the United
-States or re-export any such Proprietary Information or any direct product
-thereof except in compliance with all licenses and approvals required under
-applicable export laws and regulations, including without limitation, those of
-the U.S. Department of Commerce, and (v) not to copy or reverse engineer any
-such Proprietary Information.  Any employee, consultant or agent given access to
-any such Proprietary Information must have a legitimate "need to know" and shall
-be similarly bound in writing.  The parties shall be entitled to exchange
-Proprietary Information under the
-<PAGE>
-terms of this Agreement for a period not to exceed two (2) years from the date
-hereof, unless otherwise extended by mutual written agreement of the parties or
-incorporated into a separate agreement. Without granting any right or license,
-the Disclosing Party agrees that the foregoing clauses (i), (ii), (iii) and (v)
-shall not apply with respect to all obligations after five (5) years following
-the disclosure thereof or any information that the Receiving Party can document
-(i) is or (through no improper action or inaction by the Receiving Party or any
-agent, consultant or employee) becomes generally known to the public, (i) was in
-its possession or the possession of an affiliate or consultant or known by it
-prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to
-it, an affiliate or a consultant by a third party without restriction, or (iv)
-was independently developed without use of any Proprietary Information of the
-Disclosing Party by employees of the Receiving Party who can be demonstrated to
-have had no access to such information. The Receiving Party may make disclosures
-required by court order provided the Receiving Party uses diligent efforts to
-limit disclosure and to obtain confidential treatment or a protective order and
-has allowed the Disclosing Party to participate in the proceeding.
-          2.   Patent or Copyright Infringement.  Nothing in this Agreement is
-               --------------------------------
-intended to grant any rights under any patent or copyright of the Disclosing
-Party, nor shall this Agreement grant the Receiving Party any rights in or to
-the Disclosing Party's Proprietary Information, except the limited right to
-review such Proprietary Information solely for the purpose of evaluating a
-possible business transaction.
-          3.   Return of Materials.  Immediately upon (i) the decision by either
-               -------------------
-party not to enter into a relationship as a result of the exchange of
-information hereunder, or (ii) a request by the Disclosing Party at any time,
-the Receiving Party will turn over to the Disclosing Party all Proprietary
-Information of the Disclosing Party and all documents or media containing any
-such Proprietary Information and any and all copies or extracts or derivatives
-thereof to the extent it is requested by either party in writing, except that a
-single copy may be retained for legal archival purposes, subject to protection
-and non-disclosure in accordance with the term of this agreement. The Receiving
-Party understands that nothing herein (i) requires the disclosure of any
-Proprietary Information of the Disclosing Party, which shall be disclosed if at
-all solely at the option of the Disclosing Party, or (ii) requires the
-Disclosing Party to proceed with any proposed transaction or relationship in
-connection with which Proprietary Information may be disclosed.
-          4.   No Publicity.  Except to the extent required by law, neither
-               ------------
-party shall disclose the existence or subject matter of the negotiations or
-business relationship contemplated by this Agreement.
-          5.   Securities Law Considerations.  Each party is aware, and will
-               -----------------------------
-advise its employees, consultants and agents who are informed of the matters
-that are the subject of this agreement, of the restrictions imposed by the
-United States securities laws on the purchase and sale of securities by any
-person who has received material, non-public information from the issuer of such
-securities and on the communication of such information to any other person when
-it is reasonably foreseeable that such other person is likely to purchase or
-sell such securities in reliance upon such information.
-                                       2
-<PAGE>
-          6.   Miscellaneous.  The Receiving Party acknowledges and agrees that
-               -------------
-due to the unique nature of the Disclosing Party's Proprietary Information,
-there can be no adequate remedy at law for any breach of its obligations
-hereunder, that any such breach may allow the Receiving Party or third parties
-to unfairly compete with the Disclosing Party resulting in irreparable harm to
-the Disclosing Party, and therefore, that upon any such breach or any threat
-thereof, the Disclosing Party may seek appropriate equitable relief (without the
-need to post bond or other security) in addition to whatever remedies it might
-have at law.  The Receiving Party will notify the Disclosing Party in writing
-immediately upon the occurrence of any such unauthorized release or other breach
-of which it is aware.  In the event that any of the provisions of this Agreement
-shall be held by a court or other tribunal of competent jurisdiction to be to
-any extent illegal, invalid or unenforceable, such provisions shall be limited
-or eliminated to the minimum extent necessary so that this Agreement shall
-otherwise remain in full force and effect.  This Agreement shall be governed by
-and construed in accordance with the laws of the State of California, without
-regard to principles of conflicts of law.  The parties agree that any dispute
-regarding the interpretation or validity of this Agreement shall be subject to
-the exclusive jurisdiction of the state and federal courts in and for the County
-of San Diego, California, and each party hereby agrees to submit to the personal
-and exclusive jurisdiction and venue of such courts.  This Agreement supersedes
-all prior discussions and writings and constitutes the entire agreement between
-the parties with respect to the subject matter hereof.  This Agreement may not
-be amended except in an express writing signed by officers of both parties.  No
-waiver or modification of this Agreement will be binding upon either party
-unless made in writing and signed by a duly authorized representative of such
-party and no failure or delay in enforcing any right will be deemed a waiver.
-          Each party warrants to the other that it is duly authorized to enter
-into this Agreement and that the terms of this Agreement are not inconsistent
-with any of its respective outstanding contractual obligations.  The execution
-and performance of this Agreement does not obligate the parties to enter into
-any other agreement or to perform any obligations other than as specified
-herein.
-          IN WITNESS WHEREOF, the parties have executed this Agreement as of the
-day and year set forth below.
-Date:    3-10-99
-      -------------
-COMBICHEM, INC.,                          DUPONT PHARMACEUTICALS COMPANY,
-a Delaware corporation                    a Delaware general partnership
-By:  /s/ Vicente Anido, Jr.               By:  /s/ David S. Block
-    -------------------------             -----------------------
-    Vicente Anido, Jr., Ph.D.             David S. Block, M.D.
-Its: President and                        Its: Vice President, Product Planning
-     Chief Executive Officer              and Acquisition
-                                       3

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@@ -1,1632 +0,0 @@
-<PAGE>
-                                                                   Exhibit 10.14
-                                                           Agreement No.________
-                            Non-Disclosure Agreement
-This Agreement is made between CELERITY SYSTEMS, INC., ("CELERITY") and UNISYS
-Corporation - Federal Systems Division. ("UNISYS") and concerns the handling,
-safeguarding and exchange of sensitive, proprietary or confidential information
-(collectively "Proprietary Information"). It is agreed and understood that any
-exchange of such Proprietary Information is expressly for the sole purpose of
-CELERITY and UNISYS evaluating a possible business arrangement involving an
-existing UNISYS contract with a federal government agency.
-1.   For the purposes hereof, Proprietary Information shall be any documents,
-     materials or information that (i) is in tangible form and clearly marked as
-     being proprietary, confidential or sensitive and (ii) is received by one
-     party to this Agreement ("Recipient") from the other party to this
-     Agreement ("Transmitter").
-2.   The Recipient agrees to safeguard, protect and handle all Proprietary
-     Information made available under this Agreement with the same degree of
-     care and procedures as Recipient applies to its own confidential or
-     proprietary information. Without the written consent of the Transmitter,
-     the Recipient of Proprietary Information agrees (i) not to disclose,
-     disseminate, reproduce or otherwise distribute such information and
-     materials to any third party, except a governmental judicial authority's
-     issued order and (ii) not to use such information for any other purposes
-     beyond that expressly set forth in this Agreement.
-3.   All Proprietary Information disclosed under this Agreement shall remain the
-     property of the Transmitter. It is agreed that the Recipient does not
-     obtain any title or license rights to the Proprietary Information furnished
-     under this Agreement.
-4.   All Proprietary Information exchanged under this Agreement shall be
-     returned or destroyed in accordance with written instructions upon the
-     earlier of a written request from the Transmitter or termination of this
-     Agreement. Either party may terminate this Agreement, at any time, by
-     providing written notice to the receiving party. Termination of this
-     Agreement shall not be construed as relieving the Recipient of its
-     obligations to safeguard, protect and dispose of the Proprietary
-     Information as set forth in this Agreement.
-5.   The Recipient's obligations to protect, safeguard and handle Proprietary
-     Information received hereunder shall not be binding if such Proprietary
-     Information (i) is in the public domain through no fault of the Recipient,
-     (ii) is known to the Recipient prior to disclosure hereunder, (iii) is
-     lawfully disclosed to Recipient by a third party. The Recipient's
-     obligations shall survive until the Proprietary Information has been
-     returned, destroyed in accordance with written instructions or covered by a
-     subsequent agreement between CELERITY and UNISYS for the contemplated
-     services.
-This represents the entire agreement of the parties relative to the subject
-matter and shall be governed and construed under the laws of the Commonwealth of
-Virginia.
-Accepted by:
-UNISYS Corporation                        CELERITY SYSTEMS, INC.
-By: /s/ Dennis A. Chaloux                 By: /s/ William R. Chambers
-  ----------------------------------         ----------------------------
-Name: Dennis A. Chaloux                   Name: William R. Chambers
-                                               --------------------------
-Title: Sr. Subcontract Administrator      Title: Vice President
-                                                -------------------------
-Date: 6/30/97                             Date: 6/26/97
-<PAGE>
-                               SUBCONTRACT BETWEEN
-                               UNISYS CORPORATION
-                               8008 Westpark Drive
-                             McLean, Virginia 22102
-                                       AND
-                             CELERITY SYSTEMS, INC.
-                      9051 Executive Park Drive, Suite 400
-                           Knoxville, Tennessee 37923
-SUBCONTRACT NUMBER:                                      97-IW0324-CELERITY
-PRIME CONTRACT NUMBER:                                   263-96-D-0324
-PERIOD OF PERFORMANCE:                                   (Reference Section 2.0)
-SUBCONTRACT TYPE:                                        Firm-Fixed-Price (FFP)
-                                                         Time & Material (T&M)
-                                                         Purchase Orders
-SUBCONTRACT AMOUNT:                                      (Reference Section 1.0)
-PAYMENT TERMS:                                           Payment shall be made
-                                                         upon receipt of proper
-                                                         invoice, Net (30) days
-                                                         (Reference Section 13.)
-PRIORITY RATING:                                         N/A
-SECURITY CLASSIFICATION:                                 None
-UNISYS SUBCONTRACT ADMINISTRATOR:                        Dennis A. Chaloux
-<PAGE>
-                                TABLE OF CONTENTS
-ARTICLE                                                                     PAGE
-1.0      Supplies/Services and Prices..........................................3
-2.0      Period of Performance.................................................5
-3.0      Packaging Labeling and Shipping.......................................5
-                           4.0 Inspection and Acceptance
-                           5.0 Assignment
-                           6.0 Changes
-                           7.0 Disputes Involving the Government
-8.0      Binding Arbitration...................................................6
-                           9.0      Delays
-                           10.      Default
-                           11.      Notices
-                           12.      Invoices/Payments
-13.      Patent Indemnity......................................................7
-                           14.      Risk of Loss
-                           15.      Termination
-16.      Title.................................................................8
-                           17.      Warranty
-                           18.      Limitation of Liability
-                           19.      Compliance With Laws
-20.      Relationship of the Parties..........................................12
-                           21.      Indemnification
-                           22.      Limitation of Obligation
-                           23.      Release of News Information
-                           24.      Non-Waiver Rights
-25.      Representations and Certifications...................................13
-                           26.      Ethical Conduct
-                           27.      Severability
-                           28.      Applicable State Law
-                           29.      Attachments/Exhibits
-                           30.      Statement of Work
-31.      Complete Agreement...................................................14
-                                       2
-<PAGE>
-                                    RECITALS
-         This Agreement is entered into by and between Unisys Corporation,
-Federal Systems Division, a Delaware corporation, with its principal offices
-located at 8008 Westpark Drive, McLean, Virginia 22102 (hereinafter referred to
-as the "BUYER"), and Celerity Systems, Inc. (hereinafter referred to as the
-"SELLER") with offices located at 9051 Executive Park Drive, Suite 400,
-Knoxville, Tennessee 37923.
-                                 WlTNESSETH THAT
-         In consideration of mutual promises, covenants, and agreements herein
-set forth, the Parties agree that the SELLER shall furnish and deliver to the
-BUYER all of the supplies, and perform all of the services set forth herein, for
-the consideration stated therein. The rights and obligations of the Parties to
-this Agreement shall be subject to and governed by the terms of this Agreement
-and other documents or specifications attached hereto or Referenced herein.
-         This Agreement shall not be varied in its terms or conditions by any
-oral Agreement or representation, or otherwise than by an instrument in writing,
-unless executed by both SELLER and BUYER.
-         The section titles used herein are for convenience only and shall in no
-way be construed as part of this Subcontract or as an indication of the meaning
-of the particular section.
-1.0      SUPPLIES/SERVICES AND PRICES
-         SELLER shall provide the necessary personnel and facilities to furnish
-the supplies/services as determined by or specified in individual Purchase
-Orders issued to the SELLER by the BUYER. All purchase orders shall be issued
-pursuant to and in accordance with this Agreement. Prices set forth in this
-Agreement include taxes, duties, similar charges and include shipping charges.
-All charges for deliveries to the Washington, D.C. Metropolitan Area are
-included in the item prices. Transportation charges for deliveries outside the
-Washington, D.C., Metropolitan Area will be negotiated on an individual Purchase
-Order basis.
-Unless otherwise provided in writing by the Subcontract Administrator, the costs
-of the following items or activities shall be unallowable as a direct cost:
-         1. Special rearrangement or alteration of facilities
-         2. Purchase or lease of any item of general purpose office furniture,
-         office equipment or FIP equipment regardless of dollar value. (General
-         purpose equipment is defined as any items of personal property which
-         are usable for purposes other than research, such as office equipment
-         and furnishings, pocket calculators, etc.);
-         3. Travel to attend meetings unless specified in the purchase order
-         issued by the Unisys Subcontract Administrator
-         4. Capitalized nonexpendable equipment (defined as having an
-         acquisition cost of $1,000 or more and a life expectancy of more than
-         two years).
-                                       3
-<PAGE>
-         5. Travel Costs unless specified in the specific Purchase Order. When
-authorized, expenditures for domestic travel (transportation, lodging,
-subsistence, and incidental expenses) incurred in direct performance of the
-resultant subcontract shall be subject to the provisions of Section 24 of Public
-Law 99-234 which amends the Office of Federal Procurement Policy Act to provide
-that Subcontractor costs for travel, including lodging, other subsistence, and
-incidental expenses, shall be allowable only to the extent that they do not
-exceed the amount allowed for federal employees. The Subcontractor, therefore,
-shall invoice and be reimbursed for all Travel costs in accordance with
-guidelines published in the Federal Register, Vol. 58, No. 42, Friday March 5,
-1993.
-         6. Postage shall be unallowable unless specifically stated in the
-Purchase Order.
-         7. If appropriate, any and all Other Direct Costs (ODC's) shall be
-specified in the individual Purchase Orders.
-         TRAVEL AND PER DIEM
-         (a) Outside the Washington, D.C. Metropolitan Area:
-         Travel by air will be reimbursed at actual not to exceed coach fare.
-         Travel subsistence reimbursement will be authorized under the rates and
-         conditions of the Federal Travel Regulations and if applicable, an
-         Agency's Department Travel Manual. Per Diem will be reimbursed at
-         actual, not to exceed the Per Diem rates set forth in Federal Property
-         Management Regulations (FPMR) 41 CFR Chapter 101, Chapter 7, GSA
-         Bulletin FPMR A-40 Supplement (in effect at time of travel). Travel of
-         more than 10 hours, but less than 24 hours, when no lodging is
-         required, Per Diem shall be one-half of the Meals and Incidental
-         Expenses (M&IE) rate prescribed for the location where the majority of
-         the time is spent performing official business. The Per Diem allowance
-         shall not be allowed when the period of official travel is 10 hours or
-         less during the same calendar day. Travel by privately owned vehicle
-         will be reimbursed at the current GSA approved mileage rate. If the
-         Subcontractor incurs travel costs in excess of the amount show in each
-         Purchase Order, it is at its own expense.
-         (b) Inside the Washington, D.C. Metropolitan Area:
-               (1)  Travel will be reimbursed based on the policies stated in
-                    paragraph (a) above.
-               (2)  Normal commuting expenses are not allowed.
-         (c) Travel will be reimbursed on a cost basis only. Any burden added
-         to the travel costs will be allowed only as defined in the
-         Subcontractor's standard accounting practice or disclosure statement.
-The prices for the supplies/services to be provided by the SELLER are as
-follows:
-CLIN              SUPPLIES/SERVICES       QTY.        UNIT PRICE       NET PRICE
-----              -----------------       ----        ----------       ---------
-**To be determined on an individual Purchase Order Proposal Basis.**
-                                       4
-<PAGE>
-2.0 PERIOD OF PERFORMANCE
-         The term of this Agreement shall be from the date of execution through
-14 August 1997. The Agreement term may be extended four (4) additional
-twelve-month periods upon the BUYER's prior written notice of each such
-twelve-month extension period; provided, however, that this Agreement is not
-otherwise terminated pursuant to the Termination clause herein.
-3.0 PACKAGING LABELING AND SHIPPING
-         BUYER shall provide SELLER with packaging, labeling and shipping
-instructions with each purchase order issued pursuant to this Agreement. SELLER
-agrees to ship products ordered by BUYER in accordance with such instructions.
-4.0 INSPECTION AND ACCEPTANCE
-         SELLER shall only tender for acceptance those items that conform to the
-requirements of this Agreement. Unisys reserves the right to inspect or test any
-supplies or services that have been tendered for acceptance. Unisys may require
-repair or replacement of nonconforming supplies or reperformance of
-nonperforming services at no additional cost. Unisys agrees to exercise its post
-acceptance rights (1) within a reasonable time after the defect was discovered
-or should have been discovered; and (2) before any substantial change occurs in
-the condition of the item, unless the change is due to the defect in the item.
-The Unisys approving and accepting authority for inspection and acceptance of
-CLIN's will be the Program Manager or his designated representative. The Program
-Manager's designated representative will be identified on each individual P.O.
-issued pursuant to any resulting subcontract agreement.
-Unless advised otherwise in individual Purchase Orders, inspection and
-acceptance of all CLIN's hereunder shall take place at the Government
-installation site. The installation site location shall be set forth in
-individual Purchase Orders.
-5.0 ASSIGNMENT
-         SELLER may assign it's rights to be paid amounts due as a result of
-performance under this contract, to a bank, trust company or other financing
-institution, including any Federal lending agency in accordance with the
-Assignment of Claims Act (31 U.S.C. 3727)
-6.0 CHANGES
-         Changes in the terms and condition of this Agreement may be made only
-by written agreement of the parties hereto.
-7.0 DISPUTES INVOLVING THE GOVERNMENT
-         This Agreement is subject to the Contract Disputes Act of 1978, as
-amended (41 U.S.C. 601-613). Failure of the parties to reach agreement on any
-request for equitable adjustment, claim, appeal or action arising under or
-relating to this Agreement shall be a dispute to be resolved in accordance with
-the clause at FAR 52.233-1 Disputes, which is incorporated herein by reference.
-SELLER shall proceed diligently with performance of this Agreement, pending
-final resolution of any dispute arising under this Agreement.
-                                       5
-<PAGE>
-Any decision on appeal, or any other decision of the Government under the Prime
-Contract which cannot be appealed under the "Disputes" clause of the Prime
-Contract, if binding on the BUYER shall also bind the SELLER to the extent that
-it relates to this Agreement, provided the BUYER shall have promptly notified
-the SELLER of such decision and, if requested by SELLER, shall have brought suit
-or filed claim, as appropriate against the Government. A final judgment in any
-such suit or final disposition of such claim shall be conclusive upon the BUYER
-and the SELLER.
-For any action brought by the BUYER on behalf of the SELLER pursuant to this
-clause, the SELLER agrees to indemnify and hold the BUYER harmless from all
-costs and expenses incurred by the BUYER in prosecuting any such appeal
-initiated by the BUYER at the Seller's request. All costs and expenses incurred
-by the BUYER shall be paid by the SELLER and shall not be reimbursed or
-compensable as a cost under the Agreement, unless recovered by the BUYER under
-the Prime Contract or as part of an award of damages to the BUYER based on such
-a claim.
-8.0 BINDING ARBITRATION
-         Any dispute or controversy between the BUYER and SELLER which concerns
-only the BUYER and the SELLER or which does not involve a final decision of the
-Government Contracting Officer, and which cannot be resolved by mutual agreement
-of the parties hereto, shall be settled by arbitration in accordance with the
-commercial rules then in effect of the American Arbitration Association. The
-place of such arbitration shall be Washington, D.C. Each party shall select one
-arbitrator and the two arbitrators so selected shall select the third
-arbitrator. The arbitrators shall be knowledgeable in Government procurement
-matters related to the types of supplies and services provided pursuant to this
-Agreement. The arbitration decision and award shall be binding on the parties,
-and judgment thereon may be entered in any court of competent jurisdiction.
-9.0 DELAYS
-         SELLER shall be liable for default unless nonperformance is caused by
-an occurrence beyond the reasonable control of the SELLER and without its fault
-or negligence. SELLER shall notify the BUYER in writing as soon as it is
-reasonably possible after the commencement of any excusable delay, setting forth
-the full particulars in connection therewith, shall remedy such occurrence with
-all reasonable dispatch, and shall promptly give written notice to the BUYER of
-the cessation of such occurrence.
-10. DEFAULT
-         If either party hereto fails to perform an obligation under this
-Agreement, the other party, may issue a default termination letter to the party
-in default of an obligation under this Agreement to cure the default condition.
-If the default condition is not remedied within ten (10) calendar days from the
-day of receipt of such letter, the issuer of the default termination letter may
-the without the necessity of any further notice, discontinue performance and
-terminate this Agreement for default and pursue any other remedies available at
-law or in equity. Any failure to exercise rights under this Article shall not
-constitute a waiver of any past, present or future right or remedy.
-11. NOTICES
-         All correspondence or notifications required under this Agreement shall
-be addressed as follows:
-UNISYS Corporation                            Celerity Systems, Inc.
-                                       6
-<PAGE>
-Attention: Dennis A. Chaloux
-8008 Westpark Drive, Mail Stop W5A12
-McLean, Virginia  22102
-Phone: (703) 556-5578 Fax: (703) 556-5283
-Attention: Bill Chambers
-9051 Executive Park Drive, Suite 400
-Knoxville, Tennessee 37923
-Phone: (423) 539-5300 Fax: (423) 539-5390
-12. INVOICES/PAYMENTS
-         SELLER shall submit an original invoice and two (2) copies to:
-                               UNISYS Corporation
-                               Attention: Frederick W. Garner III
-                               8008 Westpark Drive, Mail Stop W5F39
-                               McLean, Virginia 22102
-SELLER's invoice must include:
-         (l) Name and address of the SELLER,
-         (2) Invoice Date
-         (3) Prime Contract Number, contract line item number and purchase
-         order number
-         (4) Description, quantity, unit of measure, unit price and extended
-         price of the items delivered.
-         (5) Shipping number and date of shipment including the bill of lading
-         number and weight of shipment. Shipping charges shall be itemized
-         separately.
-         (6) Terms of any prompt payment discount if offered.
-         (7) Name and address of official to whom payment is to be sent; and
-         (8) Name, title and phone number of person to be notified in event of
-         defective invoice.
-         SELLER shall submit invoices for payment for the Products and Services
-accepted under this Agreement. Invoices for Products and Services may be
-submitted after the date of delivery of such Products and/or Services to the
-F.O.B. destination site. Upon receipt of a proper invoice, BUYER agrees to pay
-SELLER for accepted Products and Services net forty-five (45) days.
-13. PATENT INDEMNITY
-         SELLER agrees to indemnify BUYER, the United States Government and
-their respective officers, employees and agents against liability, including
-costs, for actual or alleged direct or contributory infringement of, or
-inducement to infringe, any United States or foreign patent, trademark or
-copyright, arising out of performance under this Agreement.
-14. RISK OF LOSS
-         Unless the Agreement specifically provides otherwise, risk of loss of
-damage to the supplies
-                                       7
-<PAGE>
-provided hereunder shall remain with the SELLER until, and shall pass to the
-BUYER upon; (1) delivery of the supplies to a carrier, if transportation is
-f.o.b. origin; or (2) delivery of the supplies to the BUYER at the destination
-specified in the Purchase Order, if transportation is f.o.b. destination.
-15. TERMINATION
-(a ) Insolvency Termination - Unless otherwise waived by BUYER in writing, this
-Agreement shall automatically terminate if SELLER(i) becomes insolvent, (ii)
-suffers the appointment of receiver or trustee to manage its business
-operations, (iii) attempts an assignment or transfer of this Agreement or any
-rights conferred under this Agreement without BUYER's consent, (iv) commences
-any bankruptcy, reorganization or liquidation action or (v) admits in writing
-that it is unable to perform its obligations under this Agreement.
-(b ) Government Contract Termination - In the event the Government Agency (i)
-terminates the Government Contract, (ii) fails to renew or continue the
-Government Contract, (iii) directs or requests that UNISYS remove or cease use
-of Government Contract line items that are associated with the products and
-services covered by this Agreement or (iv) restructures or changes the
-requirements and/or substance of the Government Contract in a manner that serves
-to either generally or specifically eliminate the requirement for the products
-and services set forth in this Agreement, UNISYS may terminate this Agreement,
-in whole or in part with written notice to SELLER. In the event of any such
-termination, UNISYS shall not be liable to SELLER beyond payment for products
-and services ordered and received by UNISYS or the Government Agency, as
-applicable, prior to the effective termination date.
-(c.) Ethics Non-Compliance Termination - This Agreement may be terminated by
-UNISYS with written notice if SELLER or an affiliated company is determined to
-be in violation of federal law, executive order, judicial order or the ethical
-provisions of Article 27 (Ethical Conduct) of this Agreement.
-(d.) Termination Affects - Termination of this Agreement applies to business
-arrangement between SELLER and BUYER whereby covered products and services may
-be ordered by BUYER from SELLER. Any termination of this Agreement does not
-affect any granted software license rights which shall survive any such
-termination.
-16. TITLE
-         Unless specified elsewhere in this Agreement or individual Purchase
-Orders issued hereunder, title to items furnished under this Agreement shall
-pass to the BUYER upon acceptance, regardless of when or where BUYER takes
-physical possession.
-17. WARRANTY
-         SELLER warrants and implies that the items delivered hereunder are
-merchantable and fit for use for the particular purpose described in this
-Agreement.
-18. LIMITATION OF LIABILITY
-         Except as otherwise provided by an express or implied warranty, SELLER
-will not be liable to BUYER for consequential, incidental, special, punitive,
-exemplary or similar damages resulting from any defect or deficiencies in
-accepted items. In no event shall BUYER be liable to SELLER, or any third party
-to this Agreement, for any consequential, incidental, special, punitive, loss of
-profit or revenue, exemplary
-                                       8
-<PAGE>
-or similar damages incurred or suffered, regardless of any notification of the
-possibility of such damages.
-19. COMPLIANCE WITH LAWS
-         SELLER agrees to comply with all applicable Federal, State and local
-laws, executive orders, rules and regulations applicable to its performance
-under this Agreement. SELLER agrees to comply with the following Federal
-Acquisition Regulation clauses, which shall be deemed incorporated by reference:
-The following clauses, as amended and modified below, are applicable to this
-order/subcontract. Without limiting any other provisions of the
-order/subcontract, the clauses are incorporated by reference into this
-order/subcontract with the same force and effect as though set forth in full
-text. The dates of the clauses incorporated by reference are the same as the
-corresponding clause in the prime contract or higher tier subcontract. The
-following definitions shall apply to this order/subcontract except as otherwise
-specifically provided.
-         "BUYER" - Means legal entity issuing this Order/Subcontract.
-         "CONTRACTING OFFICER" - Means Buyer's authorized representative who
-         signed this Order/Subcontract or is identified elsewhere in this
-         Order/Subcontract and will mean Contracting Officer, whenever
-         appropriate, where indicated elsewhere in these terms and conditions.
-         "CONTRACTOR" - Means Seller.
-         "SELLER" - Means legal entity which contracts with the Buyer.
-         "CONTRACT" or "SCHEDULE" - Means this Order Subcontract.
-         "SUBCONTRACTOR" - Means Seller's subcontractors.
-         "GOVERNMENT" - Means Buyer and will mean Government, whenever
-         appropriate, where indicated elsewhere in these terms and conditions.
-         CLAUSE        TITLE
-         ------        -----
-         52.202-1      DEFINITIONS (OCT 1995)
-         52.203-3      GRATUITIES (APR 1995)
-         52.203-5      COVENANT AGAINST CONTINGENT FEE (APR 1984)
-         52.203-6      RESTRICTIONS ON SUBCONTRACTOR SALES TO THE
-                       GOVERNMENT (JUL 1995)
-         52.203-7      ANTI-KICKBACK PROCEDURES (JUL 1995)
-         52.203-10     PRICE OR FEE ADJUSTMENT FOR ILLEGAL OR IMPROPER
-                       ACTIVITY (SEP 1990)
-         52.203-12     LIMITATION ON PAYMENTS TO INFLUENCE CERTAIN FEDERAL
-                       TRANSACTIONS
-                       (JAN 1990)
-         52.203-13     PROCUREMENT INTEGRITY -- SERVICE CONTRACTING
-                       (APR 1984)
-         52.204-2      SECURITY REQUIREMENTS (APR 1984)
-         52.209-6      PROTECTING THE GOVERNMENT'S INTEREST WHEN
-                                       9
-<PAGE>
-                       SUBCONTRACTING WITH CONTRACTORS DEBARRED,
-                       SUSPENDED, OR PROPOSED FOR DEBARMENT
-                       (JUL 1995)
-         52.210-5      NEW MATERIAL (APR 1984)
-         52.210-7      USED OR RECONDITIONED MATERIAL, RESIDUAL INVENTORY, AND
-                       FORMER GOVERNMENT SURPLUS PROPERTY (APR 1984)
-         52.212-13     STOP-WORK ORDER (AUG 1989)
-         52.212-15     GOVERNMENT DELAY (AUG 1984)
-         52.215-1      EXAMINATION OF RECORDS BY COMPTROLLER GENERAL (FEB 1993)
-         52.215-2      AUDIT AND RECORDS - NEGOTIATION (OCT 1995)
-         52.215-22     PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA (OCT
-                       1995)
-         52.215-23     PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA -
-                       MODIFICATIONS (DEC 1994)
-         52.215-24     SUBCONTRACTOR COST OR PRICING DATA (OCT 1995)
-         52.215-26     INTEGRITY OF UNIT PRICES (OCT 1995)
-         52.215-27     TERMINATION OF DEFINED BENEFIT PENSION PLANS (MAR 1996)
-         52.215-31     WAIVER OF FACILITIES CAPITAL COST OF MONEY (SEP 1987)
-         52.215-33     ORDER OF PRECEDENCE (JAN 1986)
-         52.215-39     REVERSION OR ADJUSTMENT OF PLANS FOR POST-RETIREMENT
-                       BENEFITS OTHER THAN PENSIONS (MAR 1996)
-         52.215-40     NOTIFICATION OF OWNERSHIP CHANGES (FEB 1995)
-         52.215-42     REQUIREMENTS FOR COST OR PRICING DATA OR INFORMATION
-                       OTHER THAN COST OR PRICING DATA MODIFICATIONS (OCT 1995)
-         52.216-22     INDEFINITE QUANTITY (APR 1984)
-         52.219-8      UTILIZATION OF SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED
-                       SMALL BUSINESS CONCERNS (OCT 1995)
-         52.219-9      SMALL, SMALL DISADVANTAGED, AND WOMEN-OWNED SMALL
-                       BUSINESS SUBCONTRACTING PLAN (OCT 1995)
-         52.222-1      NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (APR 1984)
-         52.222-2      PAYMENT FOR OVERTIME PREMIUMS (APR 1984)
-         52.222-3      CONVICT LABOR (APR 1984)
-         52.222-20     WALSH-HEALY PUBLIC CONTRACTS ACT (APR 1984)
-         52.222-24     PREAWARD ON-SITE EQUAL OPPORTUNITY COMPLIANCE REVIEW (APR
-                       1984) CLAUSE TITLE
-         CLAUSE        TITLE
-         ------        -----
-         52.222-26     EQUAL OPPORTUNITY (APR 1984)
-         52.222-28     EQUAL OPPORTUNITY PREAWARD CLEARANCE OF SUBCONTRACTS
-                       (OVER $ 1,000,000) (APR 1984)
-         52.222-35     AFFIRMATIVE ACTION FOR SPECIAL DISABLED AND VIETNAM ERA
-                       VETERANS (APR 1984)
-         52.222-36     AFFIRMATIVE ACTION FOR HANDICAPPED WORKERS (APR 1984)
-                                       10
-<PAGE>
-         52.222-37     EMPLOYMENT REPORTS ON SPECIAL DISABLED VETERANS AND
-                       VETERANS OF THE VIETNAM ERA (JAN 1988)
-         52.223-2      CLEAN AIR AND WATER (OVER $ 100,000) (APR 1984)
-         52.223-6      DRUG FREE WORKPLACE (JUL 1990)
-         52.223-14     TOXIC CHEMICAL RELEASE REPORTING (OCT 1995)
-         52.225-3      BUY-AMERICAN ACT - SUPPLIES (JAN 1994)
-         52.225-11     RESTRICTIONS ON CERTAIN FOREIGN PURCHASES (MAY 1992)
-         52.227-1      AUTHORIZATION AND CONSENT (OVER $50,000) (JUL 1995)
-         52.227-2      NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT
-                       INFRINGEMENT (OVER $100,000) (APR 1984)
-         52.227-3      PATENT INDEMNITY (APR 1984)
-         52.229-3      FEDERAL, STATE, AND LOCAL TAXES (OVER $ 100,000)
-                       (JAN 1991)
-         52.229-5      TAXES - CONTRACTS PERFORMED IN U.S. POSSESSIONS OR PUERTO
-                       RICO (APR 1984)
-         52.232-1      PAYMENTS (APR 1984)
-         52.232-7      PAYMENTS UNDER TIME-AND-MATERIALS AND LABOR-HOUR
-                       CONTRACTS (APR 1984)
-         52.232-8      DISCOUNTS FOR PROMPT PAYMENT (APR 1989)
-         52.232-9      LIMITATION ON WITHHOLDING OF PAYMENTS (APR 1984)
-         52.232-11     EXTRAS (APR 1984)
-         52.232-17     INTEREST (OVER $100,000) (JAN 1991)
-         52.232-25     PROMPT PAYMENT (MAR 1994)
-         52.232-28     ELECTRONIC FUNDS TRANSFER PAYMENT METHODS (APR 1989)
-         52.233-1      DISPUTES (OCT 1995)
-         52.233-3      PROTEST AFTER AWARD (OCT 1995)
-         52.237-2      PROTECTION OF GOVERNMENT BUILDINGS, EQUIPMENT AND
-                       VEGETATION (APR 1984)
-         52.242-13     BANKRUPTCY (OVER $100,000) (JUL 1995)
-         52.243-1      CHANGES - FIXED PRICE (AUG 1987)
-         52.243-3      CHANGES - TIME-AND-MATERIALS OR LABOR-HOURS (AUG 1987)
-         52.244-1      SUBCONTRACTS (FIXED PRICE CONTRACTS) (FEB 1995)
-         52.244-3      SUBCONTRACTS (TIME-AND-MATERIALS AND LABOR-HOUR
-                       CONTRACTS) (APR 1985)
-         52.245-2      GOVERNMENT PROPERTY (FIXED-PRICE CONTRACTS) (DEC 1989)
-         52.246-2      INSPECTION OF SUPPLIES -- FIXED PRICE (JUL 1985)
-         52.246-4      INSPECTION OF SERVICES --FIXED PRICE (FEB 1992)
-         52.246-16     RESPONSIBILITY FOR SUPPLIES (APR 1984)
-         52.246-25     LIMITATION OF LIABILITY - SERVICES (APR 1984)
-         S2.247-3S     FOB DESTINATION WITHIN CONSIGNEE'S PREMISES (APR 1984)
-         52.249-2      TERMINATION FOR CONVENIENCE OF THE GOVERNMENT
-                       (FIXED-PRICE) (APR 1984)
-         52.249-4      TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (SERVICES)
-                       (FIXED-PRICE) (APR 1984)
-         52.249-8      DEFAULT (FIXED-PRICE SUPPLY AND SERVICE) (OVER $100,000)
-                       (APR 1984)
-         52.253-1      COMPUTER GENERATED FORMS (JAN 1991)
-                                       11
-<PAGE>
-1-2 DEPARTMENT OF HEALTH AND HUMAN SERVICES ACQUISITION (HSAR) (48 CFR CHAPTER
-3) CLAUSES.
-CLAUSE      TITLE
-------      -----
-352.202-1   DEFINITIONS (APR 1984)
-352.232-9   WITHHOLDING OF CONTRACT PAYMENTS (APR 1984)
-352.270-4   PRICING OF ADJUSTMENTS (APR 1984)
-352.270-6   PUBLICATION AND PUBLICITY (JUL 1991)
-352.270-7   PAPERWORK REDUCTION ACT (APR 1984)
-20. RELATIONSHIP OF THE PARTIES
-         The relationship of the parties to this Agreement is that of a prime
-contractor and a subcontractor, and nothing herein shall be deemed or construed
-to create a joint venture, partnership or agency relationship between the
-parties for any purpose. It is further understood that each party is an
-independent contractor and as such shall have no authority to bind or commit the
-other.
-         SELLER is expressly prohibited from communicating with Government
-personnel with respect to any aspect of the Project under this Agreement without
-the prior consent of the BUYER, or as otherwise agreed by the parties. Any
-authorized communications between SELLER's personnel and Government personnel
-shall be conducted in the presence of the BUYER's Project Manager or other
-authorized representative unless otherwise agreed by the parties.
-21. INDEMNIFICATION
-         The employees of SELLER and the BUYER engaged in performance under this
-Agreement shall at all times be deemed to be performing as independent
-contractors and not as agents or employees of the other and the acts and
-omission of such employees shall be deemed to be those of their respective
-employers. SELLER shall indemnify and hold harmless the BUYER and its employees
-from and against any and all losses, claims, demands, judgments, costs, and
-expenses, of every nature and kind, arising out of or incidental to, or in any
-way resulting from the acts or omission of SELLER or SELLER's employees while
-acting within the scope of their employment.
-22. LIMITATION OF OBLIGATION
-         Nothing contained herein shall be deemed as obligating the BUYER to
-order any of the services described herein; however, when and if services are
-ordered by BUYER hereunder, such orders shall be subject to the terms and
-conditions of this Agreement.
-23. RELEASE OF NEWS INFORMATION
-         In the event the SELLER desires to issue a news release, public
-announcement, advertisement, or other form of publicity concerning their efforts
-in connection with this Agreement, then the SELLER, shall obtain the written
-approval of the BUYER prior to the release of said information and shall give
-full consideration to the role and contribution of the BUYER. Written approval
-shall not be unreasonably withheld by BUYER and shall be in accordance with the
-requirements of the Prime Contract.
-24. NON-WAIVER OF RIGHTS
-                                       12
-<PAGE>
-         The failure of BUYER to insist upon strict performance of the terms and
-conditions of this Agreement or to exercise any rights or remedies, shall not be
-construed as a waiver of its rights to assert any of same rights or to rely on
-any such terms or conditions at any time thereafter.
-25. REPRESENTATIONS AND CERTIFICATIONS
-         All representations and certifications which have been submitted to the
-BUYER in connection with the award of this Agreement are incorporated herein and
-made a part hereof and such have been relied upon by the BUYER in issuing this
-Agreement. SELLER agrees to promptly advise the BUYER should there be any change
-in status with respect to the matters covered by such representations and
-certifications.
-26. ETHICAL CONDUCT
-         SELLER agrees not to engage in any association, activity, work or
-undertaking which constitutes an unethical action, business operation or conduct
-in the furtherance of SELLER's production, distribution, marketing and sale of
-the products and services covered by this Agreement. SELLER shall promptly
-notify BUYER in writing, in the event (i) SELLER, SELLER's parent company or any
-company affiliated with SELLER or its parent company is debarred, suspended,
-proposed for debarment or suspension, or otherwise excluded from federal
-procurement and nonprocurement programs (ii) operation of segregated facilities,
-(iii) use of gratuities, kickback arrangements or bribes with federal agencies
-or officials or (iv) noncompliance with federal laws, executive orders, judicial
-orders or federal regulations concerning affirmative action or equal employment
-opportunity.
-27. SEVERABILITY
-         If any term or provision of this Agreement shall be found by a court of
-competent jurisdiction to be illegal or otherwise unenforceable, the same shall
-not invalidate the whole of this Agreement, but such term or provision shall be
-deemed modified to the extent necessary in the court's opinion to render such
-term or provision enforceable, and the rights and obligations of the parties
-shall be construed and enforced accordingly, preserving to the fullest
-permissible extent the intent and agreements of the parties herein set forth.
-28. APPLICABLE STATE LAW
-         This Agreement shall be deemed to have been entered into in the
-Commonwealth of Virginia, United States of America, and shall for all purposes,
-be governed by and construed under the laws thereof regardless of where any
-court action or legal proceeding is brought in connection with this Agreement.
-29. ATTACHMENTS/EXHIBITS
-         The exhibits and attachments referred to in this Agreement are
-incorporated by reference and made a part of this Agreement. This Agreement and
-the exhibits and attachments hereto set forth the entire agreement between the
-parties.
-Attachment A- Special Subcontract Flow-Down Provisions
-Attachment B - Representations and Certifications
-                                       13
-<PAGE>
-30. STATEMENT OF WORK
-         SELLER shall provide the necessary personnel, material and facilities
-to deliver to the BUYER the supplies and services set forth in each Purchase
-Order. The individual Purchase Order(s) shall have a Statement of Work
-(Attachment C) which will give the SELLER guidance to the scope of work where
-support is being requested. SELLER services shall be ordered pursuant to
-Purchase Order(s) issued by the BUYER, and all such services shall be performed
-in accordance with the specific terms and conditions of each Purchase Order.
-               A.   Work will be performed under this Subcontract only in
-                    pursuance of written Purchase Orders approved by the BUYER's
-                    Subcontract Administrator.
-               B.   SELLER's proposed pricing shall be in accordance with
-                    Sections B, D, and G of this subcontract. The agreement of
-                    the parties as to the labor mix to be used and other
-                    allowable direct costs shall also be incorporated into the
-                    Purchase Order.
-               C.   If the SELLER disputes the Purchase Order as issued, it
-                    shall notify the BUYER's Subcontract Administrator in
-                    writing within five (5) working days. Notwithstanding this
-                    notification, me SELLER shall commence work, without delay,
-                    to provide the services and deliverables as ordered.
-31. COMPLETE AGREEMENT
-         This Agreement contains the entire agreement between the parties hereto
-with respect to the matters covered herein. No other agreements,
-representations, warranties or other matters, oral or written, shall be deemed
-to bind the parties hereto with respect to the subject matter hereof. Any
-changes or amendments to this Agreement may be made only in writing and signed
-by the parties to be bound thereby.
-IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
-officers "hereunto duly authorized as of the date first written above.
-UNISYS CORPORATION                              CELERITY SYSTEMS, INC.
-BY:                                             BY:
-   ---------------------------------               -----------------------------
-TYPED NAME: Dennis A. Chaloux                   TYPED NAME: William Chambers
-TITLE: Sr. Subcontract Administrator            TITLE: Vice President
-                                                       Business Development
-DATE:                                           DATE:
-     -------------------------------                 ---------------------------
-                                       14
-<PAGE>
-                                  ATTACHMENT A
-H.1 ORDERING PROVISION
-The following ordering procedures shall apply to all Purchase Orders issued
-under any resultant Subcontract. Any supplies and/or services to be furnished
-under any resulting Subcontract will be ordered by issuance of a written
-Purchase Order. Purchase Orders shall be issued in accordance with the terms and
-conditions of the Subcontract Agreement.
-H.2 PROCUREMENT INTEGRITY - SPECIAL PROVISIONS ON EACH PURCHASE ORDER
-All Subcontractor personnel who will be personally and substantially involved in
-the performance of any Purchase Order issued under this contract which requires
-the Subcontractor to act on behalf of, or provide advice with respect to any
-phase of an agency procurement, as defined in FAR 3.104-4, shall execute and
-submit a "Employee/Contractor Non-Disclosure Agreement" Form (See Attachment in
-Section J). This is required prior to the commencement of any work on such
-Purchase Order and whenever replacement personnel are proposed under an ongoing
-Purchase Order.
-H.3 OBSERVANCE OF LEGAL HOLIDAYS AND EXCUSED ABSENCE
-The Government observes the following listed days as holidays:
-New Years Day
-Martin Luther King's Birthday
-President's Day
-Memorial Day
-Independence Day
-Labor Day
-Columbus Day
-Veteran's Day
-Thanksgiving Day
-Christmas
-In addition to the days designated as holidays, the Government observes the
-following days:
-Any other day designated by Federal Statute
-Any other day designated by Executive Order
-Any other day designated by the President's Proclamation
-It is understood and agreed between the parties that the observance of such days
-by Government personnel shall not be a reason for an additional period of
-performance, or entitlement of compensation except as set forth within the
-Subcontract Agreement. No form of holiday or other premium compensation will be
-reimbursed either as a direct or indirect cost, other than normal compensation
-for time worked.
-H.4 INSURANCE
-The Subcontractor shall secure, pay the premiums for and keep in force until the
-expiration of the
-                                       15
-<PAGE>
-resulting Subcontract, and any renewal thereof, adequate insurance as provided
-below, such insurance to specifically include liability assumed by the
-Subcontractor under this contract.
-               a. Workman's Compensation insurance as required by law of the
-               State.
-               b. Comprehensive bodily injury liability insurance with limits of
-               not less than $500,000 for each accident
-               c. Property damage liability with a limit of not less than
-               $100,000 for each accident.
-               d. Automotive bodily injury liability insurance with limits of
-               not less than $200,000 for each person and $500,000 for each
-               accident, and property damage liability insurance, with a limit
-               of not less than $40,000 for each accident.
-Each policy of insurance shall contain an endorsement that any cancellation or
-material change in the coverage adversely affecting the Government's interest
-shall not be effective unless the insurer or the Subcontractor gives written
-notice of cancellation or change, as required by the Subcontract Administrator.
-When the coverage is provided by self-insurance, the Subcontractor shall not
-change or decrease the coverage without the Subcontract Administrator's prior
-approval.
-A certificate of each policy of insurance shall be furnished to the Subcontract
-Administrator within ten (10) days after notice of award certifying, among other
-things, that the policy contains the aforementioned endorsement. The insurance
-company providing the above insurance shall be satisfactory to the Government.
-Notice of policy changes shall be furnished to the Subcontract Administrator.
-The substance of this clause shall be made to flow down to any lower tier
-subcontractors.
-H.5 IDENTIFICATION OF CONTRACTOR EMPLOYEES
-         During the period of any resulting subcontract, the rights of ingress
-and egress to and from any office for subcontractor representatives shall be
-made available as required. All Subcontractor employees whose duties under the
-resulting subcontract requires their presence at any Government facility shall
-be clearly identifiable by a distinctive badge furnished by the Government. In
-addition, corporate identification badges will be worn on the outer garment at
-all times. The obtaining of the corporate identification badge is the sole
-responsibility of the subcontractor. All prescribed information shall
-immediately be delivered to the Government Security Office for cancellation or
-disposition upon the termination of the employment of any subcontractor
-personnel. All on-site subcontractor personnel shall abide by security
-regulations, applicable to that site.
-H.6 GOVERNMENT FURNISHED ITEMS
-         All Government furnished items will be identified in the appropriate
-Purchase Order. If any given Purchase Order issued under this contract requires
-work to be performed on the Government's site, the Government will provide
-office work space, office automation equipment and furniture for Subcontractor
-personnel.
-H.7 NON-PERSONAL SERVICES
-                                       16
-<PAGE>
-         (a) As stated in the Federal Register, Volume 57, No. 190, page 45096,
-dated September 30, 1992, Policy Letter on Inherently Governmental Functions, no
-personal services shall be performed under this contract. No Subcontractor
-employee will be directly supervised by the Government. All individual employee
-assignments, and daily work direction, shall be given by the applicable employee
-supervisor. If the Subcontractor believes any Government action or communication
-has been given that would create a personal services relationship between the
-Government and any Subcontractor employee, the Subcontractor shall promptly
-notify the Subcontract Administrator of this communication or action.
-         (b) The Subcontractor shall not perform any inherently Governmental
-actions under this subcontract. No Subcontractor employee shall hold him or
-herself out to be a Government employee, agent, or representative. No
-Subcontractor employee shall state orally or in writing at any time that he or
-she is acting on behalf of the Government. In all communications with third
-parties in connection with this subcontract, Subcontractor employees shall
-identify themselves as Subcontractor employees and specify the name of the
-company for which they work.
-         (c) The Subcontractor shall insure that all of its employees working on
-this subcontract are informed of the substance of this clause. Nothing in this
-clause shall limit Unisys' rights in any way under any other provision of the
-Subcontract, including those related to Unisys' right to inspect and accept the
-services to be performed under this subcontract. The substance of this clause
-shall be included in all subcontracts at any tier.
-H.8 ORGANIZATIONAL CONFLICTS OF INTEREST
-         (a) The Subcontractor warrants that, to the best of the Subcontractor's
-knowledge and belief, there are no relevant facts or circumstances which could
-give rise to an organizational conflict of interest (OCI), as defined in FAR
-9.5, Organizational and Consultants Conflicts of Interest, or that the
-Subcontractor has disclosed all such relevant information.
-         (b) The Subcontractor agrees that if an actual or potential OCI is
-discovered after award, the Subcontractor shall make a full disclosure in
-writing to the Subcontract Administrator. This disclosure shall include a
-description of actions which the Subcontractor has taken or proposes to take,
-after consultation with the Subcontract Administrator, to avoid, mitigate, or
-neutralize the actual or potential conflict.
-         (c) The Subcontract Administrator may terminate this contract for
-convenience, in whole or in part, if it deems such termination necessary to
-avoid OCI. If the Subcontractor was aware of a potential OCI prior to award or
-discovered an actual or potential conflict after award and did not disclose or
-misrepresented relevant information to the Subcontract Administrator, Unisys may
-terminate the contract for default, advise the Government Contract Office, or
-pursue other remedies as may be permitted by law or this contract.
-          (d) The Subcontractor shall include this clause in all subcontracts
-          and in lower tier subcontracts unless a waiver is requested from, and
-          granted by, the Subcontract Administrator.
-          (e) In the event that a Purchase Order is issued to the Subcontractor
-          that would require activity that would create a potential conflict of
-          interest, the Subcontractor shall:
-               (1) Notify the Subcontract Administrator of a potential conflict,
-               and;
-                                       17
-<PAGE>
-               (2) Recommend to the Subcontract Administrator an alternate
-               tasking approach which would avoid the potential conflict, or
-               (3) Present for approval a conflict of interest mitigation plan
-               that will:
-                                       18
-<PAGE>
-                    (a) Describe in detail the Purchase Order requirement that
-                    creates the potential conflict of interest; and
-                    (b) Outline in detail the actions to be taken by the
-                    Subcontractor or Unisys in the performance of the task to
-                    mitigate the conflict, division of subcontractor effort, and
-                    limited access to information, or other acceptable means.
-               (4) The Subcontractor shall not commence work on a Purchase Order
-               related to a potential conflict of interest until specifically
-               notified by the Subcontract Administrator to proceed.
-               (5) If the Subcontract Administrator determines that it is in the
-               best interest of the Government to issue a Purchase Order,
-               notwithstanding a conflict of interest, a request for waiver
-               shall be submitted in accordance with FAR 9.503.
-                                       19
-<PAGE>
-                                  ATTACHMENT B
-                       REPRESENTATIONS AND CERTIFICATIONS
-TAXPAYER IDENTIFICATION
-(FAR 52.204-3) (MAR 1994)
-         (a) Definitions.
-         "Common parent" as used in this solicitation provision, means that
-corporate entity that owns or controls an affiliated group of corporations that
-files its Federal income tax returns on a consolidated basis, and of which the
-offeror is a member.
-         "Corporate status" as used in this solicitation provision, means a
-designation as to whether the offeror is a corporate entity, an unincorporated
-entity (e.g., sole proprietorship or partnership), or a corporation providing
-medical and health care services.
-         "Taxpayer Identification Number (TIN)" as used in this solicitation
-provision, means the number required by the IRS to be used by the offeror in
-reporting income tax and other returns.
-         (b) All offerors are required to submit the information required in
-paragraphs (c) through (e) of this solicitation provision in order to comply
-with reporting requirements of 26 U.S.C. 6041, 6041A, and 6050M and implementing
-regulations issued by the Internal Revenue Service (IRS). If the resulting
-contract is subject to reporting requirements described in 4.903, the failure or
-refusal by the offeror to furnish the information may result in a 31 percent
-reduction of payments otherwise due under the contract.
-         (c) Taxpayer Identification Number (TIN).
-                  (/)    [TIN: 101556194
-                  ( )    TIN has been applied for.
-                  ( )    TIN is not required because:
-                  ( )    Offeror is a nonresident alien, foreign corporation, or
-                         foreign partnership that does not have income
-                         effectively connected with the conduct of a trade or
-                         business in the U.S. and does not have an office or
-                         place of business or a fiscal paying agent in the U.S.;
-                  ( )    Offeror is an agency or instrumentality of a foreign
-                         government;
-                  ( )    Offeror is an agency or instrumentality of a Federal,
-                         state, or local government;
-                  ( )    Other. State basis. ______________________________.
-         (d) Corporate Status.
-                  ( )    Corporation providing medical and health care services,
-                         or engaged in the billing and collecting of payments
-                         for such services;
-                  (?)    Other corporate entity;
-                  ( )    Not a corporate entity;
-                  ( )    Sole proprietorship
-                                       20
-<PAGE>
-                  ( )    Partnership
-                  ( )    Hospital or extended care facility described in 26 CFR
-                         501(c)(3) that is exempt from taxation under 26 CFR 501
-                         (a).
-         (e) Common Parent.
-                  (/)    Offeror is not owned or controlled by a common parent
-                         as defined in paragraph (a) of this clause.
-                  ( )    Name and TIN of common parent:
-                  Name
-                  TIN_________________________________
-Offerors must complete the following representations when the resulting contract
-is to be performed inside the United States its territories or possessions
-Puerto Rico, the Trust Territory of the Pacific Islands or the District of
-Columbia.
-SMALL BUSINESS CONCERN REPRESENTATION
-(FAR 52.219-1 ) (FEB 1990)
-         (a) Representation. The offeror represents and certifies as part of its
-offer that it (/) is, ( ) is not a small business concern and that (/) all, ( )
-not all end items to be furnished will be manufactured or produced by a small
-business concern in the United States, its territories or possessions, Puerto
-Rico, or the Trust Territory of the Pacific Islands.
-         (b) Definition.
-         Small business concern, as used in this provision, means a concern,
-including its affiliates, that is independently owned and operated, not dominant
-in the field of operation in which it is bidding on Government contracts, and
-qualified as a small business under the criteria and size standards in this
-solicitation.
-         (c) Notice. Under 15 U.S.C. 645(d), any person who misrepresents a
-firm's status as a small business concern in paragraph (a) of this clause in
-order to obtain a contract to be awarded under the preference programs
-established pursuant to sections 8(a), 8(d), 9, or 15 of the Small Business Act
-or any other provision of Federal law that specifically references section 8(d)
-for a definition of program eligibility, shall (1) be punished by imposition of
-a fine, imprisonment, or both (2) be subject to administrative remedies; and (3)
-be ineligible for participation in programs conducted under the authority of the
-Act.
-SMALL DISADVANTAGED BUSINESS CONCERN
-REPRESENTATION (FAR 52.219-2) (FEB 1990)
-         (a) Representation. The offeror represents that it ( ) is, (/) is not a
-small disadvantaged business concern.
-         (b) Definitions.
-         Asian Pacific Americans, as used in this provision, means United States
-citizens whose origins are in Japan, China, the Philippines, Vietnam, Korea,
-Samoa, Guam, the U.S. Trust Territory of the
-                                       21
-<PAGE>
-Pacific Islands (Republic of Palau), the Northern Mariana Islands, Laos,
-Kampuchea (Cambodia), Taiwan, Burma, Thailand, Malaysia, Indonesia, Singapore,
-Brunei, Republic of the Marshal Islands, or the Federated States of Micronesia.
-         Indian tribe, as used in this provision, means any Indian tribe, band,
-nation, or other organized group or community of Indians, including any Alaska
-Native Corporation as defined in 13 CFR 124.1000 which is recognized as such by
-the State in which such tribe, band, nation, group or community resides.
-         Native Americans, as used in this provision, means American Indians,
-Eskimos, Aleuts, and native Hawaiians.
-         Native Hawaiian Organization, as used in this provision, means any
-community service organization serving Native Hawaiians in, and chartered as a
-not-for-profit organization by, the State of Hawaii, which is controlled by
-Native Hawaiians, and whose business activities will principally benefit such
-Native Hawaiians.
-         Small business concern, as used in this provision, means a concern,
-including its affiliates, that is independently owned and operated, not dominant
-in the field of operation in which it is bidding on Government contracts, and
-qualified as a small business under the criteria and size standards in 13 CFR
-part 121.
-         Small disadvantaged business concern, as used in this provision, means
-a small business concern that (a) is at least 51 percent owned by one or more
-individuals who are both socially and economically disadvantaged, or a publicly
-owned business having at least 51 percent of its stock unconditionally owned by
-one or more socially and economically disadvantaged individuals and (b) has its
-management and daily business controlled by one or more such individuals. This
-term also means a small business concern that is at least 51 percent
-unconditionally owned by an economically disadvantaged Indian tribe or Native
-Hawaiian Organization, or a publicly owned business having at least 51 percent
-of its stock unconditionally owned by one of these entities which has its
-management and daily business controlled by members of an economically
-disadvantaged Indian tribe or Native Hawaiian Organization, and which meets the
-requirements of 13 CFR part 124.
-         Subcontinent Asian Americans, as used in this provision, means United
-States citizens whose origins are in India, Pakistan, Bangladesh, Sri Lanka,
-Bhutan, or Nepal.
-         (c) Qualified groups. The offeror shall presume that socially and
-economically disadvantaged individuals include Black Americans, Hispanic
-Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian
-Americans, and other individuals found to be qualified by SBA under 13 CFR 124.
-The offeror shall presume that socially and economically disadvantaged entities
-also include Indian tribes and Native Hawaiian Organizations.
-WOMEN-OWNED SMALL BUSINESS REPRESENTATION
-(FAR 52.219-3) (APR 1984)
-         (a) Representation. The offeror represents that it ( ) is, (/) is not a
-women-owned small business concern.
-         (b) Definitions.
-                                       22
-<PAGE>
-         "Small business concern", as used in this provision, means a concern,
-including its affiliates, that is independently owned and operated, not dominate
-in the field of operation in which it is bidding on Government contracts, and
-qualified as a small business under the criteria and size standards in 13 CFR
-121.
-         "Women-owned", as used in this provision, means a small business that
-is at least 51 percent owned by a woman or women who are U.S. citizens and who
-also control and operate the business.
-WOMEN-OWNED BUSINESS
-(FAR 52.204-5) (OCT 1995)
-(SOLICITATIONS ANTICIPATED TO EXCEED $100,000)
-         As prescribed in FAR 4.603(b):     /
-         (a) Representation. The offeror represents that it ( ) is, (/); not a
-women-owned business concern.
-         (b) Definition. Women-owned business concern, as used in this provision
-means a concern which is at least 51 percent owned by one or more women; or in
-the case of any publicly owned business at least 51 percent of the stock of
-which is owned by one or more women; whose management and daily business
-operations are controlled by one or more women.
-The following certifications and representations are required to implement
-provisions of Executive Order 11246 and must be completed by all Offerors.
-CERTIFICATION OF NONSEGREGATED FACILITIES
-(FAR 52.222-21) (APR 1984)
-         (a) Segregated facilities, as used in this provision, means any waiting
-rooms, work areas, rest rooms and wash rooms, restaurants and other eating
-areas, time clocks, locker rooms and other storage or dressing areas, parking
-lots, drinking fountains, recreation or entertainment areas, transportation, and
-housing facilities provided for employees, that are segregated by explicit
-directive or are in fact segregated on the basis of race, color, religion, or
-national origin because of habit, local custom, or otherwise.
-         (b) By the submission of this offer, the offeror certifies that it does
-not and will not maintain or provide for its employees any segregated facilities
-at any of its establishments, and that it does not and will not permit its
-employees to perform their services at any location under its control where
-segregated facilities are maintained. The offeror agrees that a breach of this
-certification is a violation of the Equal Opportunity clause in the contract.
-         (c) The offeror further agrees that (except where it has obtained
-identical certifications from proposed subcontractors for specific time periods)
-it will--
-               (1 ) Obtain identical certifications from proposed subcontractors
-before the award of subcontracts under which the subcontractor will be subject
-to the Equal Opportunity clause:
-               (2) Retain the certifications in the files; and
-               (3) Forward the following notice to the proposed subcontractors
-(except if the
-                                       23
-<PAGE>
-proposed subcontractors have submitted identical certifications for specific
-time periods):
-NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR
-CERTIFICATIONS OF NONSEGREGATED FACILITIES
-         A Certification of Nonsegregated Facilities must be submitted before
-the award of a subcontract under which the subcontractor will be subject to the
-Equal Opportunity clause. The certification may be submitted either for each
-subcontract or for all subcontracts during a period (i.e., quarterly,
-semiannually, or annually). NOTE: The penalty for making false statements in
-offers is prescribed in 18 U.S.C. 1001.
-PREVIOUS CONTRACTS AND COMPLIANCE REPORTS
-(FAR 52.222-22) (APR 1984)
-         The offeror represents that--
-         (a) It ( ) has, (/) has not participated in a previous contract or
-subcontract subject either to the Equal Opportunity clause of this solicitation,
-the clause originally contained in Section 310 of Executive Order No. 10925, or
-the clause contained in Section 201 of Executive Order No. 11114;
-         (b) It ( ) has, (/) has not filed all required compliance reports; and
-         (c) Representations indicating submission of required compliance
-reports, signed by proposed subcontractors, will be obtained before subcontract
-awards.
-AFFIRMATIVE ACTION COMPLIANCE
-(FAR 52.222-25) (APR 1984)
-The offeror represents that--
-         (a) It ( ) has developed and has on file, (/) has not developed and
-does not have on file, at each establishment, affirmative action programs
-required by the rules and regulations of the Secretary of Labor (41 CFR 60-1 and
-60-2), or
-         (b) It (/) has not previously had contracts subject to the written
-affirmative action programs requirement of the rules and regulations of the
-Secretary of Labor.
-CERTIFICATION AND DISCLOSURE REGARDING PAYMENTS TO INFLUENCE CERTAIN FEDERAL
-TRANSACTIONS (FAR 52.203.11 )(JAN 1990) (SOLICITATIONS EXPECTED TO EXCEED
-$100,000)
-         (a) The definitions and prohibitions contained in the clause, at FAR
-52.203-12, Limitation on Payments to Influence Certain Federal Transactions,
-included in this solicitation, are hereby incorporated by reference in paragraph
-(b) of this certification.
-         (b) The offeror, by signing its offer, hereby certifies to the best of
-his or her knowledge and belief as of December 12, 1989, that--
-                                       24
-<PAGE>
-               (1) No Federal appropriated funds have been paid or will be paid
-to any person for influencing or attempting to influence an officer or employee
-of any agency, a Member of Congress, an officer or employee of Congress, or an
-employee of a Member of Congress on his or her behalf in connection with the
-awarding of any Federal contract, the making of any Federal grant, the making of
-any Federal loan, the entering into of any cooperative agreement, and the
-extension, continuation, renewal, amendment or modification of any Federal
-contract, grant, loan, or cooperative agreement;
-               (2) If any funds other than Federal appropriated funds (including
-profit or fee received under a covered Federal transaction) have been paid, or
-will be paid, to any person for influencing or attempting to influence an
-officer or employee of any agency, a Member of Congress, an officer or employee
-of Congress, or an employee of a Member of Congress on his or her behalf in
-connection with this solicitation, the offeror shall complete and submit, with
-its offer, OMB standard form LLL, Disclosure of Lobbying Activities. to the
-Contracting Officer; and
-               (3) He or she will include the language of this certification in
-all subcontract awards at any tier and require that all recipients of
-subcontract awards in excess of $100,000 shall certify and disclose accordingly.
-         (c) Submission of this certification and disclosure is a prerequisite
-for making or entering into this contract imposed by section 1352, title 31,
-United States Code. Any person who makes an expenditure prohibited under this
-provision or who fails to file or amend the disclosure form to be filed or
-amended by this provision, shall be subject to a civil penalty of not less than
-$10,000, and not more than $100,000, for each such failure.
-BUY AMERICAN ACT-TRADE AGREEMENTS-BALANCE OF PAYMENTS PROGRAM CERTIFICATE
-(52.225-8) (JAN 1994)
-As prescribed in FAR 25.408(a)(1)
-         (a) The offeror hereby certifies that each end product, except those
-listed in paragraph (b) of this provision, is a domestic end product (as defined
-in the clause entitled "Buy American Act" - Trade Agreements Balance of Payments
-Program) and that components of unknown origin have been mined, produced, or
-manufactured outside the United States, a designated country, a North American
-Free Trade Agreement (NAFTA) Country, or a Caribbean Basin country, as defined
-in section 25.401 of the Federal Acquisition Regulation.
-         (b) Excluded End Products:
-Line Item Number           Country of Origin
-___________________________________________________
-___________________________________________________
-___________________________________________________
-             (List as necessary)
-         (c) Offers will be evaluated by giving certain preferences to domestic
-end products, designated country end products, NAFTA country end products, and
-Caribbean Basin country end products over other end products. In order to obtain
-these preferences in the evaluation of each excluded end product
-                                       25
-<PAGE>
-listed in paragraph (b) of this provision, offerors must identify and certify
-below those excluded end products that are designated or NAFTA country end
-products, or Caribbean Basin country end products. Products that are not
-identified and certified below will not be deemed designated country end
-products, NAFTA country end products, or Caribbean Basin country end products.
-Offerors must certify by inserting the applicable line item numbers in the
-following:
-         (1) The offeror certifies that the following supplies qualify as
-"designated or NAFTA country end products" as those terms are defined in the
-clause entitled "Buy American Act - Trade Agreements Act - Balance of Payments
-Program":
-         _______________________________________________
-                  (Insert Line item numbers)
-         (2) The offeror certifies that the following supplies qualify as
-"Caribbean Basin country end products" as that term is defined in the clause
-entitled "Buy American Act -Trade Agreements - Balance of Payments Program":
-         _______________________________________________
-                  (Insert Line item numbers)
-         (d) Offers will be evaluated in accordance with Part 25 of the Federal
-Acquisition Regulation.
-BUY AMERICAN ACT-NORTH-AMERICAN FREE TRADE AGREEMENT IMPLEMENTATION ACT-BALANCE
-OF PAYMENTS PROGRAM CERTIFICATE
-(52.225-20) (JAN 1997)
-(a) The offeror certifies that each end product, except those listed in
-paragraph (g)(2) of this provision, is a domestic end product (as defined in the
-clause entitled "Buy American Act-North American Free Trade Agreement
-Implementation Act-Balance of Payments Program") and that components of unknown
-origin have been considered to have been mined, produced, or manufactured
-outside the United States.
-(b)  Excluded End Products:
-_______________________________________________
-Line Item No.     Country of Origin
-_______________________________________________
-           (List as necessary)
-_______________________________________________
-(c) Offers will be evaluated by giving certain preferences to domestic end
-products or NAFTA country end products over other end products. In order to
-obtain these preferences in the evaluation of each excluded end product listed
-in paragraph (b) of this provision, offerors must identify and certify below
-those excluded end products that are NAFTA country end products. Products that
-are not
-                                       26
-<PAGE>
-identified and certified below will not be deemed NAFTA country end products.
-The offeror certifies that the following supplies qualify as "NAFTA country end
-products" as that term is defined in the clause entitled "Buy American Act-North
-American Free Trade Agreement Implementation Act-Balance of Payments Program."
-_______________________________________________
-Line Item No.--   Country of Origin
-_______________________________________________
-              (List as necessary)
-(d)  Offers will be evaluated in accordance with Part 25 of the Federal
-     Acquisition Regulations.
-                               (End of provision)
-The following certification and representations is required to implement
-provisions of Executive Order 12549 and must be completed by all Offerors.
-CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER
-RESPONSIBILITY MATTERS (FAR 52.209-5) (MAY 1989)
-         (a)   (1)    The Offeror certifies, to the best of its knowledge and
-                      belief, that-
-                      (i) The offeror and/or any of its Principals --
-                           (A) Are ( ) are not (/) presently debarred,
-suspended, proposed for debarment, or declared ineligible for the award of
-contracts by any Federal agency;
-                           (B) Have ( ) have not (/) within a 3-year period
-preceding this offer, been convicted of or had a civil judgment rendered against
-them for: commission of fraud or a criminal offense in connection with
-obtaining, attempting to obtain, or performing a public (Federal, state, or
-local) contract or subcontract; violation of Federal or state antitrust statutes
-relating to the submission of offers; or commission of embezzlement, theft,
-forgery, bribery, falsification or destruction of records, making false
-statements, or receiving stolen property; and
-                           (C) Are ( ) are not (/) presently indicted for, or
-otherwise criminally or civilly charged by a governmental entity with,
-commission of any of the offenses enumerated in subdivision (A)(1)(i)(B) of this
-provision.
-                    (ii) The Offeror has ( ) has not (/) within a 3-year period
-preceding this offer, had one or more contracts terminated for default by any
-Federal agency.
-               (2) "Principals", for the purposes of this certification, means
-officers; directors; owners, partners; and, persons having primary management or
-supervisory responsibilities within a business entity (e.g., general manager;
-plant manager; head of a subsidiary, division or business segment, and similar
-positions).
-                                       27
-<PAGE>
-         THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION OF AN
-AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE, FICTITIOUS, OR FRAUDULENT
-CERTIFICATION MAY RENDER THE MAKER SUBJECT TO PROSECUTION UNDER SECTION 1001,
-TITLE 18, UNITED STATES CODE.
-         (b) The Offeror shall provide immediate written notice to the
-Contracting Officer if, at any time prior to contract award, the Offeror learns
-that its certification was erroneous when submitted or has become erroneous by
-reasons of changed circumstances.
-         (c) A certification that any of the items in paragraph (a) of this
-provision exists will not necessarily result in withholding of an award under
-this solicitation. However, the certification will be considered in connection
-with a determination of the Offeror's responsibility. Failure of the Offeror to
-furnish a certification or provide such additional information as requested by
-the Contracting Officer may render the Offeror nonresponsible.
-         (d) Nothing contained in the foregoing shall be construed to require
-establishment of a system of records in order to render, in good faith, the
-certification required by paragraph (a) of this provision. The knowledge and
-information of an Offeror is not required to exceed that which is normally
-possessed by a prudent person in the ordinary course of business dealings.
-         (e) The certification in paragraph (a) of this provision is a material
-representation of fact upon which reliance was placed when making award. If it
-is later determined that the Offeror knowingly rendered an erroneous
-certification, in addition to other remedies available to the Government, the
-Contracting Officer may terminate the contract resulting from this solicitation
-for default.
-CERTIFICATION:
-The undersigned certifies under penalty of law that the information provided
-above to the best of his/her knowledge is true and correct. I have executed this
-certification as of the day and year stated below.
----------------------------------------
-Signature of authorized representative
-William Chambers
----------------------------------------
-Typed name of authorized representative
-Vice President Business Development
----------------------------------------
-Title of authorized representative
-           6/26/97
-----------------------------------------
-                  Date
-                                       28

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-<PAGE>   1
-                                                                    EXHIBIT 2.4
-                  NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
-         THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (this "Agreement")
-is made and entered into as of the 31st day of July, 1997, by and between Roland
-W. Samples ("Samples"), Wyndham Hotel Corporation, a Delaware corporation (the
-"Acquiror"), and ClubHouse Hotels, Inc., a Kansas corporation (the "Target
-Company").
-                                    RECITALS
-         A.      Pursuant to the Agreement and Plan of Merger dated as of July,
-21 1997 among the Target Company, the Acquiror, WHC Acquisition Corporation, a
-Delaware corporation ("MergerSub"), Samples and David H. Aull (the "Merger
-Agreement"), the parties have agreed to the merger of MergerSub with and into
-the Target Company (the "Merger") and certain related transactions (the Merger
-and such related transactions are collectively referred to herein as the
-"Merger Transactions"), all on the terms and subject to the conditions set
-forth in the Merger Agreement and such other ancillary agreements as are
-referenced therein.
-         B.      Samples is a principal stockholder of the Target Company and,
-as such, will derive substantial benefit from the Merger Transactions.
-         C.      Each of the Acquiror and the Target Company has been and
-presently is engaged (itself and through its subsidiaries and the Related
-Entities) in the business of owning, franchising, licensing and operating
-hotels (the "Business").  Samples is a director and the President and Chief
-Financial Officer of the Target Company (and is also an officer and/or director
-of certain of the Target Company's subsidiaries and affiliates and the Related
-Entities).
-         D.      The Merger Agreement provides, as a condition to the Closing
-thereunder, that Samples shall execute and deliver this Agreement.
-         E.      The agreements of Samples hereunder are an important aspect of
-the Merger Transactions, and the Acquiror and MergerSub would not consummate
-the Merger Transactions absent the execution and delivery by Samples of this
-Agreement.
-         NOW, THEREFORE, in consideration of the premises and of the mutual
-promises contained herein, and of other good and valuable consideration, the
-receipt and sufficiency of which are hereby acknowledged, the parties do hereby
-agree as follows:
-         1.      Certain Definitions.  Terms with initial capital letters used
-herein that are not defined herein shall have the meanings provided for such
-terms in the Merger Agreement.  As used herein, the term "Target Company" shall
-mean ClubHouse Hotels, Inc. prior to the consummation of the Merger and as the
-surviving corporation in the Merger.
-<PAGE>   2
-         2.      Restrictive Covenants.
-                 (a)      Samples hereby acknowledges and agrees that (i) the
-know-how, trade secrets, intellectual property rights, marketing and operating
-techniques, contacts, customers, suppliers, technology and other aspects of the
-business of the Target Company and the Related Entities have been, and
-hereafter will be, of value to the Acquiror, the Target Company and the Related
-Entities and have provided, and hereafter will provide, the Acquiror, the
-Target Company and the Related Entities with substantial competitive advantage
-in the operation of their businesses; (ii) by virtue of his previous
-relationship with the Target Company and the Related Entities as an officer,
-director, shareholder and employee, he has detailed and substantial knowledge
-and possesses confidential information concerning the business, operations,
-pricing structure, customers, suppliers, personnel and competitive methods of
-the Target Company and the Related Entities; and (iii) he has substantial
-financial resources and experience in the business of owning, franchising,
-licensing and operating hotels and the ability to operate a business or
-businesses that could compete with the Acquiror, the Target Company, their
-respective subsidiaries and affiliates and the other Related Entities.
-                 (b)       Samples agrees that, except for such disclosure as
-may be required by applicable law, he shall not, directly or indirectly, for
-himself or through or on behalf of any other person or entity, at any time
-after the date hereof, without the prior written consent of the Acquiror,
-reveal, divulge, disclose or communicate to any person, firm, association,
-corporation or other entity, or use, in any manner whatsoever any know-how,
-trade secrets, intellectual property rights, marketing and operating
-techniques, business contacts, client or customer lists, suppliers, technology,
-contracts or other confidential or proprietary information of the Target
-Company, any Related Entity or any of their respective affiliates (except Innco
-Hospitality, Inc. and any entity controlled by Innco Hospitality, Inc. and
-Transamerican Properties, Inc. and T.I.P. Realty Partners, and any entity
-controlled by either of them and the Broadway Plaza Suites in Kansas City,
-Missouri); provided, however, that for purposes hereof, information shall not
-be considered to be confidential or proprietary if (i) it is a matter of common
-knowledge or public record or (ii) the Undersigned can demonstrate that such
-information was already known to the recipient thereof other than by reason of
-any breach of any obligation under this Agreement or any other confidentiality
-or non-disclosure agreement.
-                 (c)      Samples agrees that, for a period of five (5) years
-(or such lesser period hereinafter provided for) following the date hereof (the
-"Restricted Period"), he shall not, without the prior express written consent
-of the Acquiror:
-                          (i)     except with respect to the Permitted Hotels
-         (as defined below), call upon, solicit, divert, take away or attempt
-         to call upon, solicit, divert or take away any existing or potential
-         customers, suppliers or accounts of the Acquiror Companies, the
-                                      -2-
-<PAGE>   3
-         Target Company or the Related Entities or their respective businesses
-         in connection with any business substantially similar to the Business;
-                          (ii)    hire or attempt to hire, for himself or on
-         behalf of any other person, any present or future employee of the
-         Acquiror Companies, the Target Company or any Related Entity; or
-                          (iii)   own, lease, maintain, operate, franchise,
-         license, manage, invest in or provide financing for, or give any
-         advice to any person, firm, partnership, association, venture,
-         corporation or other entity owning an interest in or engaging,
-         directly or indirectly, in the management or operation of, (A) any
-         Hilton Garden, Courtyard by Marriott or Doubletree Club hotel wherever
-         located or (B) any other Upscale Hotel (as defined below) or Extended
-         Stay Hotel (as defined below) located in the United States, Canada,
-         Mexico or the Caribbean within a ten (10)-mile radius of any hotel now
-         or hereafter operated under the "Wyndham," "ClubHouse," or "Homegate"
-         brand, except for any such activity conducted for or on behalf of, or
-         in conjunction with, any of the Acquiror Companies or, in the case of
-         clause (B), Permitted Hotels (as defined below); provided, that if a
-         hotel operated under the "Wyndham," "ClubHouse," or "Homegate" brand
-         is announced for a location that is within a ten (10)-mile radius of
-         any hotel that prior to the date of such announcement was in operation
-         and is owned, managed or operated by any such entity in which Samples
-         has also prior to such date commenced involvement of a type that would
-         otherwise be restricted by clause (B), then this clause (iii) shall
-         not require Samples to cease such involvement; or
-                          (iv)    enter into any contract or make any
-         commitment to take any action that is restricted by clauses (i), (ii)
-         or (iii) above.
-                 (d)      As used in the foregoing provisions, (i) the term
-"Upscale Hotel" shall mean any hotel or other lodging facility that is a full
-service hotel or facility of a type that is treated or classified as an
-"upscale hotel" or as part of the "upscale segment" of the lodging industry by
-Smith Travel Research or, if such a classification is not available from Smith
-Travel Research, by a similar reputable hotel industry service; (ii) the term
-"Extended Stay Hotel" shall mean any hotel or other lodging facility that
-derives the majority of its business from guests who stay three consecutive
-nights or longer or that is of a type that is treated or classified as an
-"extended stay hotel" or as part of the "extended stay segment" of the lodging
-industry by Smith Travel Research or, if such a classification is not available
-from Smith Travel Research, by a similar reputable hotel industry service and
-(iii) "Permitted Hotels" shall mean, collectively, (A) the hotel in Wichita,
-Kansas operated as of the date hereof as the Wichita Airport Hilton and (B) the
-hotel in Peoria, Illinois operated as of the date hereof as the Pere Marquette,
-(C) any upscale all-suites hotel located or to be located adjacent to the
-Sprint campus in Overland Park, Kansas, (D) the Holiday Inn in Topeka, Kansas,
-so long as managed under a management contract by
-                                      -3-
-<PAGE>   4
-Samples or any entity controlled by Samples; (E) if so provided by Section 2(e)
-below, any three (3) other hotels that, at the time that Samples owns, leases,
-operates, franchises, licenses, manages, invests in or gives advice in respect
-of such hotels, have been open and in operation for at least one (1) years,
-provided that this clause (E) and the similar provision of the Non-Competition
-and Non-Disclosure Agreement of David H. Aull of even date herewith shall
-collectively not authorize more than a total of three hotels; (F) the Broadway
-Plaza Suites in Kansas City, Missouri and (G) any Extended Stay Hotel at a
-specified site if (x) Samples has offered in writing to Acquiror or its
-designee to develop for Acquiror or such designee an Extended Stay Hotel at
-such site as a Homegate brand (or other extended stay brand maintained by
-Acquiror, Target Company or their respective affiliates) Extended Stay Hotel in
-accordance with the procedure set forth below and (y) Acquiror or its designee
-has either advised Samples that it does not wish to have an Extended Stay Hotel
-developed at such site as a Homegate (or other extended stay brand maintained
-by Acquiror, Target Company or their respective affiliates) or failed to
-respond within the time period set forth below.  In the case of clause (G)
-above, Samples' offer shall include a reasonably detailed proposal for the
-development of the site as an Extended Stay Hotel.  Acquiror or its designee
-shall be given at least thirty (30) days to evaluate such offer and respond to
-Samples.  If Acquiror or its designee fails to respond within such thirty (30)
-day period or  advises Samples that it does not wish to have an Extended Stay
-Hotel developed at such site as a Homegate (or other extended stay brand
-maintained by Acquiror, Target Company or their respective affiliates), Samples
-may develop an Extended Stay Hotel on such site with another party if
-construction of such Extended Stay Hotel is commenced within 180 days
-thereafter and is pursued with reasonable diligence thereafter.
-                 (e)      If, by July 1, 1998, Samples has not entered into an
-agreement with the Acquiror (or any successor to or affiliate of the Acquiror
-or any such successor) concerning the development, franchise or operation of a
-hotel, then upon such date the definition of Permitted Hotels in Section 2(d)
-above shall include clause (E) thereof from and after such date.  As used in
-the preceding sentence and in Section 2(f) below, an "affiliate" of any person
-means any other person controlling, controlled by, or under common control
-with, such first person.
-                 (f)      If, by July 1, 1998 (if the merger of Acquiror into
-Patriot Hospitality, Inc. provided for in the Patriot-Acquiror Merger Agreement
-(as defined in the Merger Agreement) (the"Patriot-Acquiror Merger") has not
-occurred by that date) or one (1) year after the closing of the
-Patriot-Acquiror Merger (if such merger has occurred prior to July 1, 1998),
-Samples has not entered into an agreement with the Acquiror (or any successor
-to or affiliate of the Acquiror or any such successor) concerning the
-development, franchise or operation of a hotel, then upon such date the term of
-the Restricted Period automatically shall be reduced from five (5) to three (3)
-years.
-                 (g)      Except as otherwise expressly permitted hereby, the
-covenants in this Section 2 are intended to restrict Samples from competing in
-any manner with the Acquiror
-                                      -4-
-<PAGE>   5
-Companies, the Target Company and the Related Entities or the Business in the
-activities that have heretofore been carried on by the Acquiror Companies, the
-Target Company and the Related Entities.  The obligations set forth in this
-Section above shall apply to actions by Samples, whether taken directly or
-indirectly, through any form of ownership, and whether as principal, officer,
-director, agent, employee, employer, consultant, stockholder or holder of any
-equity security (beneficially or as trustee of any trust), lender, partner,
-joint venturer or in any other individual or representative capacity
-whatsoever.  However, none of the foregoing shall prevent Samples from (i)
-being the holder of up to 5% in the aggregate of any class of securities of any
-corporation engaged in the activities described above, provided that such
-securities are listed on a national securities exchange or reported on NASDAQ
-or (ii) being the holder of non-convertible debt securities of any entity.
-         3.      Enforcement of Covenants.  Samples acknowledges that a
-violation or attempted violation of any of the covenants and agreements in
-Section 2 above will cause such damage to the Acquiror Companies, the Target
-Company and the Related Entities as will be irreparable, the exact amount of
-which would be difficult to ascertain and for which there will be no adequate
-remedy at law, and accordingly, Samples agrees that each of the Acquiror
-Companies and the Target Company and any Related Entity shall be entitled as a
-matter of right to an injunction issued by any court of competent jurisdiction,
-restraining such violation or attempted violation of such covenants and
-agreements by Samples, or the employees, partners or agents of Samples, as well
-as recover from Samples any and all costs and expenses sustained or incurred by
-the Acquiror Companies and the Target Company and the Related Entities in
-obtaining such an injunction, including, without limitation, reasonable
-attorneys' fees.  Samples agrees that no bond or other security shall be
-required in connection with such injunction.  Samples further agrees that the
-Restricted Period shall be tolled during any period of violation thereof by
-Samples.  Any exercise by any one or more of the Acquiror Companies and the
-Target Company and the Related Entities of their respective rights pursuant to
-this Section 3 shall be cumulative and in addition to any other remedies to
-each of them may be entitled.
-         4.      Intellectual Property.  Samples recognizes and agrees that, on
-and after the date hereof, he will not have the right to use for his own
-account any of the service marks, trademarks, trade names, licenses, labels,
-trade secrets or customers' lists owned by or licensed to the Acquiror
-Companies, the Target Company or any of the Related Entities.
-         5.      Consideration.  As consideration for Samples' agreements
-provided herein, the Acquiror agrees to pay to Samples the total sum of
-$500,000, which amount shall be payable by wire transfer of immediately
-available funds on the date hereof.  Samples also acknowledges and agrees that,
-in addition thereto, he has received substantial consideration and benefit,
-direct and indirect, pursuant to the Merger and the other transactions
-contemplated by the Merger Agreement.
-                                      -5-
-<PAGE>   6
-         6.      Validity.  Samples acknowledges and agrees that each of the
-covenants contained herein is a reasonable limitation as to time, geographical
-area and scope of activity to be restrained and does not impose a greater
-restraint than is necessary to protect the goodwill or other interests of the
-Acquiror Companies and the Target Company and the Related Entities.  To the
-extent permitted by applicable law, if it should ever be held that any
-provision contained herein does not contain reasonable limitations as to time,
-geographical area or scope of activity to be restrained, then the court so
-holding shall at the request of any of the Acquiror Companies or the Target
-Company or any Related Entity reform such provisions to the extent necessary to
-cause them to contain reasonable limitations as to time, geographical area and
-scope of activity to be restrained and to give the maximum permissible effect
-to the intentions of the parties as set forth herein; and the court shall
-enforce such provisions as so reformed.  If, notwithstanding the foregoing, any
-provision hereof is held to be illegal, invalid or unenforceable under present
-or future laws effective during the term hereof, such provision shall be fully
-severable; this Agreement shall be construed and enforced as if such illegal,
-invalid or unenforceable provision had never comprised a part hereof; and the
-remaining provisions hereof shall remain in full force and effect and shall not
-be affected by the illegal, invalid or enforceable provision or by its
-severance here from.  Furthermore, in lieu of such illegal, invalid or
-unenforceable provision there shall be added automatically by the Acquiror and
-the Target Company as a part hereof a provision as similar in terms to such
-illegal, invalid or unenforceable provision as may be possible and be legal,
-valid and enforceable, and the parties hereby agree to such provision.
-         7.      Waiver of Breach.  The waiver by any party to this Agreement
-of a breach of any provision of this Agreement shall not operate or be
-construed as a waiver of any subsequent breach by any party.
-         8.      Tax Reporting.  The parties hereby expressly agree that the
-consideration given and received pursuant to this Agreement shall, for income
-tax purposes, be reported as amounts paid for a covenant not to compete. The
-parties acknowledge that Samples shall be solely responsible for the payment of
-any federal, state or local taxes arising from his receipt of the consideration
-under this Agreement.
-         9.      Notice.  Any notice, request, instruction, document or other
-communication to be given hereunder by any party hereto to any other party
-hereto shall be in writing and validly given if (i) delivered personally, (ii)
-sent by telecopy, (iii) delivered by overnight express, or (iv) sent by
-registered or certified mail, postage prepaid, as follows:
-                                      -6-
-<PAGE>   7
-         If to Acquiror or the Target Company:
-                 Wyndham Hotel Corporation/ClubHouse Hotels, Inc.
-                 2001 Bryan Street
-                 Suite 2300
-                 Dallas, TX 75201
-                 Attention:  Legal Department
-                 Facsimile No. (214) 863-1262
-         If to Samples:
-                 Mr. Roland W. Samples
-                 11230 College Boulevard, Suite 130
-                 Overland Park, Kansas 66210-2700
-                 Facsimile No. (913) 451-6072
-or at such other address for a party as shall be specified by like notice.  Any
-notice which is delivered personally, or sent by telecopy or overnight express
-in the manner provided herein shall be deemed to have been duly given to the
-party to whom it is directed upon actual receipt by such party.  Any notice
-which is addressed and mailed in the manner herein provided shall be
-conclusively presumed to have been given to the party to whom it is addressed
-at the close of business, local time of the recipient, on the third day after
-the day it is so placed in the mail.
-         10.     Entire Agreement.  This Agreement contains the entire
-agreement of the parties hereto with respect to the matters covered hereby, and
-supersedes all prior negotiations and written, oral or implied representations,
-warranties, commitments, offers, contracts and understandings between the
-parties with respect to such matters.  No modification or amendment of any of
-the terms, conditions or provisions in this Agreement may be made otherwise
-than by written agreement signed by the parties hereto, except as provided in
-Section 6 hereof.
-         11.     Successors and Assigns.  The terms and conditions of this
-Agreement shall inure to the benefit of and be binding upon the parties hereto
-and their respective successors and permitted assigns; provided, however, that
-the obligations herein of Samples may not be delegated or assigned, and any
-purported delegation or assignment by Samples in violation of this Section 11
-shall be null and void.  Samples hereby acknowledges and agrees that the
-Acquiror Companies and Related Entities, and any other entity now or hereafter
-owning or operating any hotel operated under the "Wyndham," "ClubHouse" or
-"Homegate" brand, are intended beneficiaries of the provisions hereof,
-notwithstanding the fact that such entities may not be parties hereto, and
-shall be entitled to enforce the provisions hereof as if they were parties
-hereto.
-                                      -7-
-<PAGE>   8
-         12.     Headings.  The headings of the sections of this Agreement are
-inserted for convenience only and shall not be deemed to constitute part of
-this Agreement or to affect the construction hereof.
-         13.     Governing Law.  THIS AGREEMENT SHALL BE CONSTRUED, ENFORCED,
-AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO
-ITS CHOICE OF LAW PRINCIPLES).
-         14.     Counterparts.  This Agreement may be executed in any number of
-counterparts, each of which shall be an original, and such counterparts
-together shall constitute one and the same instrument.
-           [THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]
-                                      -8-
-<PAGE>   9
-         IN WITNESS WHEREOF, the parties have executed this Agreement as of the
-date first above written.
-                                            /s/ ROLAND W. SAMPLES
-                                            --------------------------------
-                                                   Roland W. Samples
-                                             WYNDHAM HOTEL CORPORATION,
-                                             a Delaware corporation
-                                             By: /s/ MICHAEL SILVERMAN
-                                                ----------------------------
-                                             Name: Michael Silverman
-                                                  --------------------------
-                                             Title: Authorized Agent
-                                                   -------------------------
-                                             CLUBHOUSE HOTELS, INC.
-                                             a Kansas corporation
-                                             By: /s/ ROLAND W. SAMPLES
-                                                ----------------------------
-                                             Name: Roland W. Samples
-                                                  --------------------------
-                                             Title: President
-                                                   -------------------------
-                                      -9-

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- Prepared by MERRILL CORPORATION
-QuickLinks
- -- Click here to rapidly navigate through this document
-Exhibit 99.20
-CONFIDENTIALITY AND STANDSTILL AGREEMENT
-    This Confidentiality and Standstill Agreement (the "Agreement") is entered into as of this 7th day of March, 2001, by and between Polycom, Inc. ("Polycom"),
-and PictureTel Corporation ("PictureTel"), a Delaware corporation.
-WITNESSETH:
-    WHEREAS, Polycom and PictureTel may consider engaging in discussions with respect to a possible negotiated business combination involving PictureTel and
-Polycom or their respective subsidiaries (the "Transaction") and, prior to or during the course of any such discussions, PictureTel and Polycom each may have disclosed or, in the future, may disclose
-and make available to the other certain information concerning its business prospects, financial condition, operations, assets and liabilities;
-    WHEREAS,
-all such information furnished to a party or its Representatives (as defined below) by or on behalf of the other party (irrespective of the form of communication and whether
-such information is so furnished before, on or after the date hereof), and all analyses, compilations, data, studies, notes, interpretations, memoranda or other documents prepared by a party or its
-Representatives containing or based in whole or in part on any such furnished information are collectively referred to herein as the "Confidential Information;" and
-    WHEREAS,
-each of Polycom and PictureTel hereby agrees to receive such Confidential Information of the other and to disclose such Confidential Information to the other subject to the
-following terms and conditions.
-    NOW,
-THEREFORE, for and in consideration of the mutual promises and obligations contained herein and for other good and valuable consideration, the receipt and sufficiency of which
-are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
-    1.  Non-Disclosure of Confidential Information.  (a) Each of PictureTel and Polycom shall
-(i) use the Confidential Information obtained from the other solely for the purpose of evaluating a possible Transaction and for no competitive or other purpose; (ii) not disclose the
-Confidential Information to any third party, except for disclosures to its directors, executive officers and representatives of its advisors (such as independent accountants, investment bankers,
-consultants and attorneys) acting on its behalf (collectively, its "Representatives") who in each case, in such party's reasonable judgment, need to know such information for the purpose of evaluating
-a possible Transaction and who are set forth on Annex A hereto, as it may be amended by the parties from time to time; (iii) inform its Representatives of the confidential nature of the
-Confidential Information and direct its Representatives to treat the Confidential Information confidentially and in accordance with the terms of this Agreement; (iv) take all additional
-reasonable precautions necessary to prevent the disclosure of the Confidential Information by its Representatives to any third party; and (v) be responsible for any breach of this Agreement by
-its Representatives.
-    (b) If
-either party is required (by interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any
-Confidential Information, it is agreed that such party will provide the other party with prompt notice of such request so that such other party may seek an appropriate protective order and/or waive
-the notifying party's compliance with the provisions of this Agreement. If, in the absence of a protective order, either party is nonetheless compelled to disclose Confidential Information, such party
-may disclose, without liability hereunder, only that portion of the Confidential Information that such party is advised in writing by outside legal counsel is legally required to be disclosed;
-provided that such party gives to the other party written notice of the portion of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable and, upon such
-other party's request, uses reasonable efforts to obtain assurances that confidential treatment will be accorded to such information.
-    2.  Non-Disclosure of Negotiations or Agreements.  Except as required by law, neither PictureTel, Polycom
-nor their respective Representatives shall disclose to any person (including, without limitation, any director, officer or employee that is not set forth on Annex A) the existence, status or terms of
-any discussions, negotiations or agreements between them concerning a possible Transaction, including without limitation any offer, letter of intent, proposal, price, value or valuation, or any
-similar terms, agreements or understandings between PictureTel and Polycom with respect thereto, or that such party has provided to or received from the other Confidential Information, without
-obtaining the prior written consent of the other party. The term "person" as used in this Agreement will be interpreted broadly to include the media and any corporation, company, group, partnership or
-other entity or individual.
-    3.  Ownership of Confidential Information.  Each party shall keep a reasonable record of the Confidential
-Information received by it and the location of such Confidential Information. All written Confidential Information delivered by one party hereto to the other party pursuant to the Agreement shall be
-and remain the property of the delivering party, and upon the written request of the delivering party, the receiving party shall (i) promptly return such Confidential Information and shall not
-retain any copies or other reproductions or extracts thereof, (ii) destroy or have destroyed all memoranda, notes, reports, analyses, compilations, studies, interpretations, or other documents
-derived from or containing Confidential Information, and all copies and other reproductions and extracts thereof, and (iii) provide a certificate to the delivering party certifying that the
-foregoing materials have, in fact, been destroyed or returned, signed by an authorized officer supervising such destruction or return. Notwithstanding the return or destruction of the Confidential
-Information, each party and its Representatives will continue to be bound by the confidentiality and other obligations hereunder. Each party will keep a record of each person, other than its
-Representatives, that is afforded access to the other party and/or the Confidential Information of the other party, and before such access is afforded, each party agrees to inform such person of the
-requirements of this Agreement. Each party will furnish to the other party, upon request, a written copy of such record of such persons, other than its Representatives, that have been afforded access
-to the other party and/or the Confidential Information.
-    4.  Information Not Deemed Confidential Information.  The term "Confidential Information" does not
-include information that (i) is or becomes generally available to the public, other than, as a result of a disclosure by the receiving party or its Representatives in violation of this
-Agreement; (ii) is or becomes available to the receiving party from a source other than the delivering party or its Representatives, provided that such source is not known by the receiving party to be
-bound by an obligation of confidentiality to such delivering party or its Representatives; or (iii) was within the receiving party's possession prior to being furnished to the receiving party
-by or on behalf of the delivering party, provided that the person providing such information to the receiving party was not bound by a confidentiality agreement with the delivering party or otherwise
-prohibited from transferring such information to the receiving party by any contractual, legal or fiduciary obligation.
-    5.  No Warranty.  Neither PictureTel, Polycom nor any of their respective officers, directors, employees,
-representatives or agents makes any representation or warranty, express or implied, as to the accuracy and completeness of any Confidential Information provided by it, and no liability shall result to
-the delivering party from its use, except as set forth in a definitive agreement for a Transaction. Only the representations and warranties that are made in a definitive agreement for a Transaction,
-when, as, and if it is executed, and subject to such limitations and restrictions as may be specified therein, shall have any legal effect.
-    6.  No Agreement.  Unless a definitive agreement regarding a Transaction between PictureTel and Polycom
-has been executed and delivered, neither Polycom, PictureTel nor any of their stockholders or affiliates will be under any legal obligation of any kind whatsoever with respect to such a Transaction by
-virtue of this letter agreement or any other written or oral expression with respect to such Transaction except, in the case of this Agreement, matters specifically agreed to herein. Each party
-2
-further acknowledges and agrees 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 Representatives with regard to a
-Transaction, to deny any request for Confidential Information (regardless of the reasonableness of such request) and to terminate discussions or negotiations with the other party at any time. Neither
-this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of PictureTel and Polycom, which consent shall refer specifically to this paragraph (or such
-other provision) and explicitly make such waiver or amendment.
-    7.  Non Solicitation.  Unless a Transaction is consummated, each party agrees that, for a period of
-eighteen (18) months from the date hereof, it will not hire or directly or indirectly solicit employment of (other than by means of a general advertisement) any of the (i) employees of the
-other party with whom it has had contact during the process contemplated by this Agreement or (ii) management level personnel or officers of the other party. It is expressly understood that this
-Agreement is not intended to preclude the ability of the parties to compete with one another in the ordinary course and that each party will arrange with the Principal, President or Chief Financial
-Officer of the other party (and no other individuals) for appropriate contacts for due diligence purposes. Unless otherwise agreed by either party, all (i) communications regarding a possible
-Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, or (iv) discussions or questions regarding procedures will be submitted
-or directed only to the President or Chief Financial Officer of the other party. Without the prior written consent of the President of the other party, neither party nor its Representatives will
-initiate, or cause to be initiated, any communication with any officer, director or employee of the other party concerning the Confidential Information or any possible Transaction.
-    8.  Non-Public Information.  PictureTel has outstanding publicly-held securities and the Confidential
-Information contains material non-public information. Each of the parties acknowledges that it is (i) aware, and has advised or will advise its Representatives, that the United States
-securities laws prohibit any person in possession of material non-public information about a company from purchasing or selling securities of such company, and from communicating such information to
-any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities and (ii) familiar with the Securities and Exchange Act of 1934,
-as amended, and the rules and regulations thereunder, and each party agrees that it will neither use nor permit any of its Representatives to use any Confidential Information in violation of
-such Act or rules or regulations, including, without limitation, Rules 10b-5 and 14e-3.
-    9.  Standstill.  Each of the parties agrees that, until the expiration of eighteen months from the date
-of this Agreement, without the prior written consent of the Board of Directors or General Partners of the other party, it and its affiliates will not (i) in any manner acquire, agree to acquire
-or make any proposal or offer or otherwise seek to acquire, directly or indirectly any securities (or rights in respect thereof), assets or property of the other party or any of its subsidiaries,
-whether such agreements or proposals or offers are made with or to the other party (or any controlling person or successor thereof) or any of its subsidiaries; (ii) enter into or agree, offer,
-seek or propose to enter into or otherwise be involved in or part of, directly or indirectly, any merger, acquisition transaction or other business combination involving the other party or any of its
-subsidiaries or any of their respective assets; (iii) 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 Exchange Act of 1934, as amended (the "Exchange Act")) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the other party or any
-of its subsidiaries; (iv) 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
-other
-party or any of its subsidiaries; (v) otherwise act, alone or in concert with others, to seek or propose to control or influence the management, Board of Directors or policies of the other
-party; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the foregoing activities or propose any
-of such activities to
-3
-any other person; or (vii) publicly disclose any intention, plan or arrangement inconsistent with the foregoing; (viii) directly or indirectly advise, encourage, provide assistance
-(including debt or equity financial assistance) to or hold discussions with or invest in any other person in connection with any of the foregoing. Each party also agrees that, during such eighteen
-month period, neither it nor any of its affiliates will: (i) request the other party or its advisors, directly or indirectly, to (1) amend or waive any provision of this paragraph
-(including this sentence) or (2) otherwise consent to any action inconsistent with any provision of this paragraph (including this sentence); or (ii) take any initiative with respect to
-the other party or any of its subsidiaries that could reasonably be expected to require the other party to make a public announcement regarding (1) such initiative, (2) any of the activities
-referred to in this paragraph, (3) the possibility of a Transaction or any similar transaction or (4) the possibility of such party or any other person acquiring control of the other
-party, whether by means of a business combination or otherwise. Notwithstanding any other provision hereof, this Section 9 shall not apply to a party in the event of a bona fide publicly announced
-proposal, offer or agreement by a third party not acting in concert with such party (i) to acquire more than 51% of any class of stock (or rights in respect thereof) of the other party or
-(ii) to acquire the other party, or all or substantially all of its assets, by means of a merger, consolidation, asset purchase or other similar transaction. Additionally, the Principal or
-President of a party may contact the Principal or President of the other party for the purpose of expressing continuing or renewed interest in a Transaction, provided that, unless invited to do so by
-the President of the other party, no offer or proposal shall be made that would require public disclosure or formal consideration by such other party or its Board of Directors.
-    10.  No Waiver.  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. Any waiver of a breach hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach.
-    11.  Remedies.  Each party agrees to indemnify the other party from any damages, loss, cost or liability
-(including, without limitation, legal fees and the cost of enforcing this Agreement) arising out of or resulting from any unauthorized use or disclosures of any Confidential Information by the other
-party or its Representatives. It is understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement by either party and that the non-breaching party shall be
-entitled to seek equitable relief, including specific performance and injunction, as a remedy for any such breach. Each party agrees to waive, and to use its best efforts to cause its directors,
-officers, employees or agents to waive any requirement for the securing or posting of any bond in connection with such remedy. Such remedies shall not be deemed to be the exclusive remedies for a
-breach of this Agreement by either party, but shall be in addition to all other remedies available at law or in equity to the non-breaching party.
-    12.  Governing Law.  This Agreement is for the benefit of the parties and their respective directors,
-officers, employees, representatives and agents and their respective successors and assigns and shall be governed by and construed in accordance with the internal substantive laws and not the choice
-of law rules of the Commonwealth of Massachusetts.
-    13.  Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be
-deemed an original, and all such counterparts together shall constitute but one and the same Agreement.
-    14.  Severability.  If any provision of this Agreement is found to violate any statute, regulation, rule,
-order, decision or decree of any governmental authority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this
-4
-Agreement, and such invalid provision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.
-Polycom, Inc.
-By:
-Name:
-Title:
-PictureTel Corporation
-By:
-Name:
-Title:
-5
-ANNEX A
-Polycom:
-Principals, Officers, Critical Employees and Directors
-Advisors:
-Investment Bankers
-Legal Counsel
-PictureTel Corporation:
-Officers, Critical Employees and Directors
-Enzo
-Torressi
-David Levi
-Carl Ledbetter
-Werner Schmucking
-Norman Gaut
-Lewis Jaffe
-Dalton Edgecomb
-W. Robert Kellegrew, Jr.
-Advisors:
-Robert
-Knight
-Ralph Takala
-Legal Counsel:
-Ropes &
-Gray
-Investment Bankers
-Robertson
-Stephens
-6
-QuickLinks
-Exhibit 99.20

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-Two Way Non-Disclosure and Confidentiality Agreement, dated October 28, 2007
-Exhibit (d)(5)   PACKETEER, INC.  TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT  THIS Agreement is made and entered into by and between PACKETEER, INC. (“Packeteer”) and
-Blue Coat Systems, Inc., a Delaware corporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or proprietary nature of each party’s confidential information.
-Each party will disclose such information solely for the purpose of evaluating the possibility of entering into a business relationship between the parties hereto (the “Purpose”). In reliance upon and in consideration of the following
-undertakings, the parties agree as follows:
-1.
-Definition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship, models,
-inventions, know-how, processes, equipment, algorithms, software source documents and formulae related to the current, future, and proposed products and services of each of the parties and information concerning research, development, financial
-information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one party (the “Discloser”) to the other party (the “Recipient”)
-which is labeled or marked “Confidential” or with some other similar proprietary legend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be “Confidential
-Information.” If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and thereafter summarize it in writing and transmit such summary to the Recipient within thirty
-(30) days of the oral disclosure.
-2.
-Exclusions. “Confidential Information” excludes information which: (a) is now or hereafter becomes generally known or available, through no act or failure to
-act on Recipient’s part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter furnishes to Recipient without restriction on disclosure and without breach of any confidentiality
-obligations; (d) Recipient has independently developed without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to disclose.
-3.
-Restrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to know; provided that Recipient
-binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with respect to professional advisors, advises them of its obligations with respect to the Confidential Information); (b) not disclose
-any Confidential Information to any third party, without Discloser’s prior written consent; (c) use such Confidential Information only to the extent required to accomplish the Purpose; (d) not reproduce Confidential Information in any
-form except as required to accomplish the Purpose; (e) not reverse engineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential Information to any country
-to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser with notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential
-Information in accordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure. Subject to Recipient’s obligations of non-disclosure, Recipient shall be free to use the
-residuals resulting from the use or access to the Confidential Information of Discloser. The term “residuals” means information in intangible form which is retained in the unaided memory of persons who have had access to the Confidential
-Information, without reference to such information in tangible or fixed form. Solely with respect to non-technical Confidential Information, Recipient’s obligations under this Section 3 shall expire one (1) year from the date of
-disclosure of such non-technical Confidential Information.
-4.
-Ownership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of Discloser. All copies shall bear
-all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at Recipient’s option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.
-5.
-Rights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted under this Agreement. Subject to
-the obligations of this Agreement, neither party will be precluded from independently developing technology or pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole
-discretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the future be developing information internally, or receiving information from third parties, that is
-similar to the Confidential Information. Nothing in this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to those contemplated by or embodied in the Confidential
-Information, provided the Recipient does not violate its obligations under this Agreement.
-6.
-Term and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set forth below. This Agreement
-may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5, and 7 shall survive any termination of this Agreement.
-7.
-Miscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and exclusive agreement of the parties
-relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed by both
-parties. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the remainder of this Agreement will continue in full force and effect. Recipient hereby acknowledges and agrees that
-no remedy at law will afford Discloser adequate protection against, or appropriate compensation for, breach of Recipient’s obligations under this Agreement. Accordingly, Recipient agrees that Discloser shall be entitled to specific performance
-of Recipient’s obligations, as well as such further equitable relief as may be granted by a court of competent jurisdiction.
- PACKETEER, INC.
-OTHER PARTY:
- By:
- /s/ Dave Côté
- /s/ Brian NeSmith
- By:
-Dave Côté
-By:
-Brian NeSmith
- Title:
- President & CEO
-Title:
-President & CEO
- Date:
- October 20, 2007
-Date:
-October 28, 2007

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-<PAGE>   1
-                                                               EXHIBIT 99(c)(37)
-                         MUTUAL NON-DISCLOSURE AGREEMENT
-               THIS AGREEMENT governs the disclosure of information by and
-between Oacis Healthcare Systems Corp. ("OACIS") and Science Applications
-International Corporation ("SAIC") as of November 4th, 1998 (the "EFFECTIVE
-DATE").
-                   1. As used herein, "CONFIDENTIAL INFORMATION" shall mean any
-and all technical and non-technical information provided by either party to the
-other, including but not limited to (a) patent and patent applications, (b)
-trade secret, and (c) proprietary information, ideas, techniques, sketches,
-drawings, works of authorship, models, inventions, know-how, processes,
-apparatuses, equipment, algorithms, software programs, software source
-documents, 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, sales and
-merchandising, marketing plans and information the disclosing party provides
-regarding third parties.
-                   2. Each party agrees that at all times until termination or
-expiration of this Agreement it will hold in strict confidence and not disclose
-to any third party Confidential Information of the other, except as approved in
-writing by the other party to this Agreement, and will use the Confidential
-Information for no purpose other than evaluating or pursuing a business
-relationship with the other party to this Agreement. Notwithstanding the above,
-the party to whom Confidential Information was disclosed (the "RECIPIENT") shall
-not be in violation of this Section 3 with regard to a disclosure that was in
-response to a valid order by a court or other governmental body, provided that
-the Recipient provides the other party with prior written notice of such
-disclosure in order to permit the other party to seek confidential treatment of
-such information. Each party shall only permit access to Confidential
-Information of the other party to those of its employees or authorized
-representatives having a need to know and who have signed confidentiality
-agreements or are otherwise bound by confidentiality obligations at least as
-restrictive as those contained herein.
-                   3. Each party shall immediately notify the other upon
-discovery of any loss or unauthorized disclosure of the Confidential Information
-of the other party.
-                   4. Each party's obligations under this Agreement with respect
-to any portion of the other party's Confidential Information shall terminate
-when the Recipient can document that: (a) it was in the public domain at the
-time it was
-<PAGE>   2
-communicated to the Recipient by the other party; (b) it entered the public
-domain subsequent to the time it was communicated to the Recipient by the other
-party through no fault of the Recipient; (c) it was in the Recipient's
-possession free of any obligation of confidence at the time it was communicated
-to the Recipient by the other party; (d) it was rightfully communicated to the
-Recipient free of any obligation of confidence subsequent to the time it was
-communicated to the Recipient by the other party or (e) it was communicated by
-the other party to an unaffiliated third party free of any obligation of
-confidence.
-                   5. Upon termination or expiration of the Agreement, or upon
-written request of the other party, each party shall promptly destroy or return
-to the other all documents and other tangible materials representing the other's
-Confidential Information and all copies thereof. The Recipient agrees to destroy
-all documents, memoranda, notes and other writings whatsoever prepared by the
-Recipient or its employees or representatives based on the information contained
-in the Confidential Information (except for references or summaries appearing in
-minutes or corporate records).
-                   6. In addition, each party agrees that it will not (and
-direct its employees and representatives not to) disclose (i) to any person
-either the fact that discussions or negotiations are taking place concerning one
-or more possible transactions between the parties or (ii) any of the terms,
-conditions or other facts with respect to any such possible transactions,
-including the status thereof.
-                   7. Although the disclosing party has endeavored to include in
-the Confidential Information, information known to it which it believes to be
-relevant for the purpose of the Recipient's investigation of a potential
-transaction, the Recipient acknowledges and agrees that neither the disclosing
-party nor any of its employees or representatives have made or make any
-representations or warranty as to the accuracy or completeness of all or any
-portion of the Confidential Information. The Recipient agrees that neither the
-disclosing party nor any of its employees or representatives shall have any
-liability to the Recipient or any of the Recipient's employees or
-representatives resulting from the use of, or conclusions arising from, the
-Confidential Information.
-                   8. The parties recognize and agree that nothing contained in
-this Agreement shall be construed as granting any property rights, by license or
-otherwise, to any Confidential Information of the other 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. Neither party shall make, have made, use or sell
-for any purpose any product or other item using, incorporating or derived from
-any Confidential Information to the other party.
-                                       2
-<PAGE>   3
-                   9. Confidential Information shall not be reproduced in any
-form except as required to accomplish the intent of this Agreement. Any
-reproduction of any Confidential Information of the other party by either party
-shall remain the property of the disclosing party and shall contain any and all
-confidential or proprietary notices or legends which appear on the original,
-unless otherwise authorized in writing by the other party.
-                  10. Nothing contained herein shall imply any obligations of
-either party to proceed with a transaction between the parties, and each party
-reserves the right to terminate the discussions contemplated hereunder, with or
-without cause, without any liability for such termination.
-                  11. This Agreement shall terminate three (3) years after the
-Effective Date and shall be binding upon the Recipient's heirs, successors and
-assigns.
-                  12. This Agreement shall be governed by and construed in
-accordance with the laws of California without reference to conflict of laws
-principles. This Agreement may not be amended except by a writing signed by both
-parties hereto.
-                  13. Each party acknowledges that its breach of the Agreement
-will cause irreparable damage and hereby agrees that the other party shall be
-entitled to seek injunctive relief under this Agreement, as well as such further
-relief as may be granted by a court of competent jurisdiction. Additionally, in
-the event of a breach by the Recipient, the disclosing party shall be entitled
-to recover the costs of enforcing this Agreement including, without limitation
-reasonable attorneys' fees.
-                  14. If any provision of this Agreement is found by a proper
-authority to be unenforceable or invalid such unenforceability or invalidity
-shall not render this Agreement unenforceable or invalid as a whole and in such
-event, such provision shall 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.
-                  15. Neither party shall communicate any information to the
-other in violation of the proprietary rights of any third party.
-                  16. Neither party will assign or transfer any rights or
-obligations under this Agreement without the prior written consent of the other
-party.
-                  17. Neither party shall export, directly or indirectly, any
-technical data acquired from the other pursuant to this Agreement or any product
-utilizing any
-                                       3
-<PAGE>   4
-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.
-                  18. All notices or reports permitted or required under this
-Agreement shall be in writing and shall be delivered by personal delivery,
-electronic mail, facsimile transmission or by certified or registered mail,
-return receipt requested, and shall be deemed given upon personal delivery, five
-(5) days after deposit in the mail, or upon acknowledgment of receipt of
-electronic transmission. Notices shall be sent to the addresses set forth at the
-end of this Agreement or such other address as either party may specify in
-writing.
-                  19. Each of the parties agrees that the software programs of
-the other party contain valuable confidential information and each party agrees
-it will not modify, reverse engineer, decompile, create other works from, or
-disassemble any software programs contained in the Confidential Information of
-the other party without the prior written consent of the other party.
-                  20. This Agreement may be executed in two or more
-counterparts, each of which when so executed and delivered shall be deemed an
-original, and such counterparts together shall constitute only one instrument.
-                                       4
-<PAGE>   5
-               IN WITNESS WHEREOF, the parties hereto have caused this Mutual
-Non-Disclosure Agreement to be executed as of the Effective Date.
-OACIS HEALTHCARE SYSTEMS CORP.            SCIENCE APPLICATIONS INTERNATIONAL
-                                          CORPORATION
-By: /s/  Stephen Ghiglieri                  By: /s/  K. J. Houston
-    ------------------------                    ----------------------------
-Name: /s/  Stephen Ghiglieri                Name: /s/  K. J. Houston
-      ----------------------                      --------------------------
-Date: November 4, 1998                      Date: November 4, 1998
-      ----------------------                      --------------------------
-Address: The Oacis Building                 Address: 10260 Campus Point Drive
-         1101 Fifth Avenue                           San Diego, CA 92121
-         San Rafael, CA 94901
-                                       5

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-                          EXHIBIT "H"
-                   NON-DISCLOSURE AGREEMENT
-                                                            Contract No.  [***]
-                 MUTUAL NON-DISCLOSURE AGREEMENT
-This MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement") made this ____ day of
-____ , 199__ (the "Effective Date") between FEDERAL EXPRESS CORPORATION
-("Federal") and INTERNATIONAL BILLING SERVICES, INC ("IBS").
-RECITALS
-    1. Federal and IBS have each developed certain confidential and
-proprietary information ("Federal's Confidential Information" or "IBS's
-Confidential Information") including, but not limited to, financial
-statements, financing documents, trade secrets, new products, copyrights,
-computer software, documentation, specifications, systems, hardware,
-concepts, designs, configurations, schedules, costs, performance features,
-techniques, copyrighted matter, patentable and patented inventions, plans,
-methods, drawings, data, tables, calculations, documents or other paperwork,
-computer program narratives, flow charts, source and object codes, business
-and marketing plans, dealings, arrangements, objectives, locations and
-customer information.
-    2. In order to discuss the pursuit of a business relationship, Federal
-and IBS recognize the need for disclosure of Federal's Confidential
-Information to IBS, and of IBS's Confidential Information to Federal.
-    3. Federal is willing to disclose its Confidential Information to IBS and
-IBS is willing to disclose its Confidential Information to Federal pursuant
-to the terms and subject to the conditions of this Agreement.
-FOR AND IN CONSIDERATION of the mutual covenants contained in this Agreement,
-Federal and IBS (individually a "Party" and collectively the "Parties") agree
-as follows:
-    Section 1. Confidentiality of Information. (a) Each party acknowledges
-that all Confidential Information which has or will come into its possession
-or knowledge after the Effective Date in connection with business
-discussions, conferences or other activities in pursuit of a business
-relationship between Federal and IBS:
-     (i)  is proprietary to the disclosing party, having been designed,
-developed or accumulated by the disclosing party at a great expense and over
-lengthy periods of time and
-*** Portions of this exhibit have been redacted pursuant to a Confidential
-Treatment Request.
-<PAGE>
-    (ii)  is secret, confidential and unique, and constitutes the exclusive
-property of the disclosing party. Each party acknowledges that any disclosure
-of the other's Confidential Information other than for the benefit of the
-other party will be wrongful and will cause irreparable injury to the other
-party and, therefore, each party agrees to hold the other's Confidential
-information in strictest confidence and not to make use of it other than for
-the benefit of the other party.
-   (b) Information shall be deemed "Confidential Information" and shall be
-subject to the terms of this Agreement if:
-    (i)  the party to which such information is being
-disclosed is notified that the information is confidential
-or proprietary prior to its disclosure; or
-    (ii)  information in a tangible form is labeled as confidential or
-proprietary prior to its disclosure; or
-    (iii) the party to which such information is being disclosed knows that
-such information is confidential or proprietary or would be reasonably
-expected to understand the confidential or proprietary nature of such
-information.
-   Section 2. Non-Disclosure to Third Parties. Neither party shall
-communicate the other's Confidential Information in any form to any third
-party without the other party's prior written consent and each party shall
-use its best efforts to prevent inadvertent disclosure of the other's
-Confidential Information to any third party. Any Confidential Information
-disclosed to a third party pursuant to this Section shall be provided
-pursuant to a non-disclosure agreement between the party providing the
-information and the third party, which non-disclosure agreement shall
-substantially conform to this Agreement. In addition, the parties agree that
-they will conform to the provisions of applicable securities laws in
-connection with their use of the Confidential Information.
-   Section 3. Authorized Disclosure. The parties acknowledge that in order to
-enable them to discuss pursuit of a business relationship each may be
-required to disseminate the other party's Confidential Information to various
-of its employees. Each party undertakes to cause any of its employees to whom
-such Confidential Information is transmitted to be bound to the same
-obligation of secrecy and confidentiality to which the parties are bound
-under this Agreement.
-   Section 4. Survival of Terms. The obligations of this Agreement shall
-terminate with respect to any particular portion of a party's Confidential
-Information:
-    (i)    if either party can show that the Confidential Information
-received from the other is or has become generally available to the public
-through no violation of the terms of this Agreement;
-*** Portions of this exhibit have been redacted pursuant to a Confidential
-Treatment Request.
-<PAGE>
-     (ii)  if either party can show that such Confidential Information is in
-a written record in such party's files prior to receipt from the other party;
-     (iii) if either party at any time lawfully obtains such Confidential
-Information in writing from a             third party under circumstances
-permitting its disclosure;
-     (iv)  if such Confidential Information is disclosed with the prior
-written consent of the party to whom such Confidential Information belongs,
-provided that any disclosure complies in all respects with the terms of such
-written consent; or
-     (v)   if such Confidential Information is disclosed pursuant to the
-lawful requirement of a governmental agency or required by operation of law;
-provided that the party to whom such Confidential Information belongs
-shall be given written notice prior to such disclosure and such disclosure
-shall be permitted only to the extent required by law.
-Otherwise, the obligations of this Agreement with respect to either party's
-Confidential Information shall terminate on the later of (i) three (3) years
-after the Expiration Date (or earlier termination date) of this Agreement as
-set forth in Section 5 hereof, or (ii) in the event there are
-any contracts or agreements between the parties which are entered into in
-connection with information disclosed under this Agreement, three (3) years
-after the date of termination or expiration of all such contracts and
-agreements between the parties.
-     Section 5. Extent of Agreement. (a) This Agreement shall govern all
-communications between Federal and IBS that are made from the Effective Date
-of this Agreement through and including the date which shall be three (3)
-years from the Effective Date of this Agreement (the "Expiration Date").
-Notwithstanding the Expiration Date, the parties agree that in the event of
-any breach of this Agreement by a party, the injured party shall have the
-right to immediately terminate this Agreement.
-     (b) This Agreement is not an agreement by either party to enter into any
-business relationship with the other or to procure any product or service
-from the other. Any agreement for such business relationship, purchase or
-other procurement shall be at the discretion of the parties and shall be
-evidenced by separate written agreements executed by the parties.
-     Section 6. Governing Law. This Agreement shall be governed by and
-construed in accordance with the laws of Tennessee.
-written.
-     Section 7. Injunctive Relief. In addition to and not in lieu of the
-right to terminate as provided in Section 5, the parties agree that in the
-event of any violation or threatened
-*** Portions of this exhibit have been redacted pursuant to a Confidential
-Treatment Request.
-<PAGE>
-violation of this Agreement the injured party shall be authorized and
-entitled to obtain from any court of competent jurisdiction preliminary and
-permanent injunctive relief as well as an equitable accounting of all profits
-or benefits arising from such violation, which rights and remedies shall be
-cumulative and in addition to any other rights or remedies at law or in
-equity to which the injured party may be entitled.
-     Section 8. Valid Agreement. Both parties acknowledge that this Agreement
-is valid and legally binding and has been executed by an authorized
-representative, and each party confirms and ratifies the terms and conditions
-herein.
-IN WITNESS WHEREOF, the Parties have executed this Agreement on the date
-first above written.
-INTERNATIONAL BILLING SERVICES, INC.
-By: /R. Karl Turner/
-Title: Sr. Vice President
-("IBS")
-APPROVED LEGAL DEPT. TK 10/21/96
-FEDERAL EXPRESS CORPORATION
-By: /Sandra W. Cohn/
-Title: Managing Director
-("Federal")
-APPROVED AS TO LEGAL FORM CSS 10/11/96
-*** Portions of this exhibit have been redacted pursuant to a Confidential
-Treatment Request.

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-Non-Disclosure Agreement
-Exhibit (d)(6)  NON-DISCLOSURE AGREEMENT  This non-disclosure agreement (“Agreement”) is made on this the Twenty
-Second day of November, 2005 between  XIUS, a Division of Megasoft Limited a company
-incorporated in India under the provisions of the Companies Act, 1956 and having its Principal Place of Business at Reliance Classic, 3rd Floor, Road # 1, Banjara Hills, Hyderabad, A.P. 500 034, India (hereinafter referred to as “XIUS” which expression shall mean and include unless repugnant to the context, its successors and permitted
-assigns) and  Boston Communications Group, Inc. a company incorporated in Massachusetts and having its registered office at 55 Middlesex Turnpike,
-Bedford, MA 01730 (hereinafter referred to as “BCGI” which expression shall mean and include unless repugnant to the context, its successors and permitted assigns).  WHEREAS:  XIUS, a division of Megasoft – specializes in delivering cutting-edge Telecom Applications, Technology
-Platforms and services that enable Mobile Operators to Authenticate, Authorize and Charge subscribers in Real Time; BCGI is in the business of offering products and services in the field of wireless telecommunications  BCGI and XIUS are in the process of working out and negotiating a possible business relationship.  During the course of the above negotiations, XIUS and BCGI may disclose to each other certain information which may be proprietary and/or of confidential nature as more particularly described below.  NOW THEREFORE in consideration of the mutual protection of information herein by the parties hereto and such additional promises and understandings as are
-hereinafter set forth, the parties agree as follows:
-1.
-For purposes of this Agreement, “Confidential Information” means, with respect to either party, any and all information in written, representational, electronic,
-verbal or other form relating directly or indirectly to the present or potential business, operation or financial condition of or relating to the disclosing party (including, but not limited to, information identified as being proprietary and/or
-confidential or pertaining to, pricing, marketing plans or strategy, volumes, services rendered, customers and suppliers lists, financial or technical or service matters or data, employee/agent/ consultant/officer/director related personal or
-sensitive data and any information which might reasonably be presumed to be proprietary or confidential in nature) excluding any such information which (i) is known to the public (through no act or omission of the receiving party in violation
-of this Agreement); (ii) is lawfully acquired by the receiving party from an independent source having no obligation to maintain the confidentiality of such information; (iii) was known to the receiving party prior to its disclosure under
-this Agreement; (iv) was or is independently developed by the receiving party without breach of this Agreement; or (v) is required to be disclosed by governmental or judicial order, in which case the party so required shall give the other
-party prompt written notice, where possible, and use reasonable efforts to ensure that such disclosure is accorded confidential treatment and also to enable such other party to seek a protective order or other appropriate remedy at such other
-party’s sole costs.
-2.
-This Agreement does not obligate either party to disclose any particular proprietary information; to purchase, sell, license, transfer, or otherwise dispose of any technology,
-services, or products; or to enter into any other form of business, contract or arrangement. Furthermore, nothing contained hereunder shall be construed as creating, conveying, transferring, granting or conferring by one party on the other party any
-rights, license or authority in or to the information provided. The parties shall use the Confidential Information only for the limited purpose of the parties discussing the possibility of offering the services jointly to the carriers/operators in
-the American region and for no other purpose whatsoever.
-3.
-Each party agrees and undertakes that it shall not, without first obtaining the written consent of the other, disclose or make available to any person, reproduce or transmit in arty
-manner, or use (directly or indirectly) for its own benefit or the benefit of others, any Confidential Information save and except both parties may disclose any Confidential Information to their Affiliates, directors, officers, employees or advisors
-of their own or of Affiliates on a “need to know” basis to enable them to evaluate such Confidential Information in connection with the negotiation of the possible business relationship; provided that such persons have been informed of,
-and agree to be bound by obligations which are at least as strict as the recipient’s obligations hereunder. For the purpose of this Agreement, Affiliates shall mean, with respect to any party, any other person directly or indirectly
-Controlling, Controlled by, or under direct or indirect common Control with, such party. “Control”, “Controlled” or “Controlling” shall mean, with respect to any person, any circumstance in which such person is
-controlled by another person by virtue of the latter person controlling the composition of the Board of Directors or owning the largest or controlling percentage of the voting securities of such person or by way of contractual relationship or
-otherwise.
-4.
-The receiving party shall use the same degree of care and protection to protect the Confidential Information received by it from the disclosing party as it uses to protect its own
-Confidential Information of a like nature, and in no event such degree of care and protection shall be of less than a reasonable degree of care.
-5.
-Each party warrants that it has the right to make the disclosures under this Agreement. No other warranties are made by either party under this Agreement and all information
-exchanged under this Agreement is provided “as is”. The disclosing party shall not be in any way responsible for any decisions or commitments made by receiving party in relying on the disclosing party’s Confidential Information.
-6.
-The parties agree to indemnify and keep indemnified each other against all loss and damage, which the disclosing party may suffer as a result of any breach of this Agreement by the
-receiving party; provided always that the disclosing party shall forthwith give written notice to the receiving party of the above loss and damage and satisfactory documentary evidence of such actual loss and damage.
-7.
-The parties agree that upon termination/expiry of this Agreement or at any time during its currency, at the request of the disclosing party, the receiving party shall promptly
-deliver to the disclosing party the Confidential Information and copies thereof in its possession or under its direct or indirect control, and shall destroy all memoranda, notes and other writings prepared by the receiving party or its Affiliates or
-directors, officers, employees or advisors based on the Confidential Information and promptly certify such destruction.
-8.
-Both parties acknowledge that the Confidential Information coming to the knowledge of the other may relate to and/or have implications regarding the future strategies, plans,
-business activities, methods, processes and or information of the parties, which afford them certain competitive and strategic advantage. Accordingly neither party shall use the Confidential Information in a manner that will jeopardise or adversely
-affect in any manner such future strategies, plans, business activities, methods, processes, information, and/or competitive and strategic advantage of the disclosing party.
-9.
-The parties hereto acknowledge and agree that in the event of a breach or threatened breach by the other of the provisions of this Agreement, the party not in breach will have no
-adequate remedy in money or damages and accordingly the party not in breach shall be entitled to injunctive relief against such breach or threatened breach by the party in breach.
-10.
-No failure or delay by either party in exercising or enforcing any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise or
-enforcement of any right, remedy or power preclude any further exercise or enforcement thereof or the exercise of enforcement of any other right, remedy or power.
-11.
-If any dispute arises between the parties hereto during the subsistence or thereafter, in connection with or arising out of this Agreement, the dispute shall be referred to
-arbitration under the Indian Arbitration and Conciliation Act, 1995 by a panel of three arbitrators. Each party will appoint one arbitrator and the two arbitrators so appointed will appoint the third or the presiding arbitrator. Arbitration shall be
-held in Hyderabad, India. The proceedings of arbitration shall be in the English language. The arbitrator’s award shall be final and binding on the parties.
-2
-12.
-This Agreement will be governed exclusively by the laws of India and subject to Clause 11, jurisdiction shall be vested exclusively in the courts at Hyderabad.
-13.
-This Agreement shall not be amended, assigned or transferred by either party without the written consent of the other party.
-14.
-This Agreement shall remain valid for a period of three (3) years from the date of execution of this Agreement which term may be extended by mutual consent in writing of both
-the parties. This Agreement may be terminated by either party by giving thirty (30) days notice in writing to the other party without assigning any reason whatsoever. The obligations of each party hereunder will continue and be binding
-irrespective of whether the discussion between the parties materialise into a specific understanding/business relationship or not and for a further period of three (3) years after termination/expiry of the Agreement. In any event, however,
-the obligations of each Party to maintain the confidentiality of the Confidential Information it has received under this agreement shall continue indefinitely as to Confidential Information constituting a trade secret under applicable law.
-15.
-Each party will bear its own costs in connection with the activities undertaken in connection with this Agreement.
-16.
-Nothing in this Agreement is intended to confer any rights/remedies under or by reason of this Agreement on any third party.
-17.
-This Agreement supersedes all prior discussions and writings with respect to the Confidential Information and constitutes the entire Agreement between the parties with respect to
-the subject matter hereof. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part(s) thereof shall be stricken
-from this Agreement and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement.  IN
-WITNESS WHEREOF the parties hereto have duly executed this Agreement as of the date and year written above.
-XIUS, a Division of Megasoft Limited
-Boston Communications Group, Inc.
- /s/ Upendra Bhatt
- /s/ Erain Galiogla
-Name: Upendra Bhatt
-Name: Erain Galiogla
-Designation: Vice President
-Designation: Vice President and General Manager
-3

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-Exhibit 10.22
-NON-DISCLOSURE, NON-COMPETITION,
-AND NON-SOLICITATION AGREEMENT
-This Non-Disclosure, Non-Competition, and
-Non-Solicitation Agreement (“Agreement”) is entered into effective as of
-April 1, 2004 (the “Effective Date”), by and between Level 3 Communications,
-LLC, a Delaware limited liability company (“Level 3” or the “Buyer”), on the
-one hand, and ICG Communications, Inc. (the “Parent”), a Delaware corporation,
-and ICG Telecom Group, Inc. (the “Company”), a Delaware corporation, and for
-and on behalf of any of their direct or indirect parents, subsidiaries,
-successors, or Affiliates (collectively referred to as “ICG” or the “Sellers”),
-on the other hand.
-RECITALS
-A.                                   The
-Sellers are engaged in conducting a dial-up ISP business whereby the Sellers
-provide Internet access and other Internet-related services to Internet service
-providers and their customers.
-B.                                     The
-Buyer and Sellers are parties to an Asset Purchase Agreement (the “Purchase
-Agreement”) dated as of April 1, 2004, pursuant to which Level 3 is purchasing
-from Sellers certain of Sellers’ assets (the “Acquired Assets”) used or held
-for use by Sellers in conducting the Sellers’ dial-up ISP business whereby the
-Company provides dial-up Internet access to Internet service providers and their
-customers, excluding the Company’s direct Internet access and primary rate
-interface businesses (the “Business”), as more fully described therein.  Contemporaneous with this Agreement, Buyer
-and Sellers are closing and consummating the principal transactions
-contemplated by the Purchase Agreement.
-C.                                     Sellers
-acknowledge that the Buyer would not enter into or close the Purchase Agreement
-without Sellers’ agreement to the terms and conditions of this Agreement, and
-the execution of this Agreement by Sellers is a condition precedent to the
-Buyer’s obligation to close under the Purchase Agreement.
-AGREEMENT
-NOW, THEREFORE, in consideration of the Buyer’s execution
-and delivery of the Purchase Agreement, the closing thereunder and other good
-and valuable consideration, the receipt and sufficiency of which are hereby
-acknowledged, the parties agree as follows:
-ARTICLE 1
-NON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION
-1.1                                 Non-Disclosure.  Sellers shall not disclose or appropriate
-for their own use, or for the use of any third party, at any time, any trade
-secrets or confidential or proprietary information included in or related to
-the Acquired Assets or the Business as previously operated by Sellers, whether
-or not developed by Sellers including, without limitation, information
-pertaining to the customers, vendors, prices, profits, contract terms or
-operating procedures of Sellers relating to the Business or the Acquired
-Assets; provided, however, that Sellers may use
-any such trade secrets
-and confidential or proprietary information (a) if and to the extent used in
-their businesses other than the Business and (b) in connection with providing
-services pursuant to the Transition Services Agreement.
-1.2                                 Non-Competition.  For a period of three (3) years from
-and after the Effective Date (the “Restrictive Period”), Sellers shall
-not engage, directly or indirectly, through any other entity or with any person
-(whether as an owner, shareholder, partner, member, director, officer,
-employee, agent, investor, or otherwise), in any business activity which is in
-competition with the Business conducted by Buyer during the Restrictive
-Period.  The foregoing restrictions
-shall, however, apply only for a one-year period from and after the Effective
-Date with respect to any successor of any Seller who is not engaged in the same
-type of business as the Business as of the Effective Date and shall not apply
-at all with respect to any successor, other than Sellers and any of their
-Affiliates as of the Effective Date, that is engaged in the same type of
-business as the Business.  Because
-Sellers’ Business is nationwide, Sellers agree that they will not so compete
-anywhere in the United States (the “Territory”).  Notwithstanding the foregoing, Sellers may,
-during the 60-day period following the Effective Date, provide services in the
-Business to those customers delineated on Schedule 1.02(c) of the
-Purchase Agreement, subject to and in accordance with Section 5.08 of the
-Purchase Agreement; provided such services shall be provided solely pursuant to
-the customer contracts listed on such Schedule 1.02(c) and the amount of
-such service shall not be materially greater than that provided to such
-customers by Sellers during the 60-day period prior to the Effective Date.
-1.3                                 Non-Solicitation.  During the Restrictive Period, without the
-prior written consent of the Buyer (which Buyer may withhold in the exercise of
-its sole, absolute, and arbitrary discretion), Sellers (including, without
-limitation, any successors) shall not induce or solicit, directly or
-indirectly, through any other entity or with any other person, (whether as an
-owner, shareholder, partner, member, director, officer, employee, agent,
-investor, or otherwise) any employee of the Buyer or its Affiliates who is
-involved in the managed modem business conducted by Buyer or any of its
-Affiliates, including, without limitation, the Business, to terminate the
-employee’s employment with the Buyer or any such Affiliate.
-1.4                                 Remedies.  Any breach of any of the covenants set forth
-in this Article 1 would result in irreparable damage to the Buyer.  Consequently, and without limiting other
-remedies which may exist for a breach of this Agreement, the Buyer will have
-the right to enforce such covenants by obtaining a temporary restraining order,
-preliminary injunction, and permanent injunction restraining any violation
-hereof, pending or following a trial on the merits, without posting any bond
-and in addition to all other remedies available to the Buyer at law or in
-equity.
-1.5                                 Reasonableness
-of Covenants.  Sellers acknowledge
-and agree that the covenants contained in this Agreement are reasonable in all
-respects, including without limitation their duration and geographic
-scope.  Sellers expressly waive any
-defenses as to the reasonableness of such covenants in any action between the
-parties to enforce this Agreement.
-1.6                                 Certain
-Definitions.  As used in this
-Agreement:
-2
-(a)                                  “Affiliate”
-means, with respect to any Person, a Person that directly or indirectly,
-through one or more intermediaries, Controls, is Controlled by, or is under
-common Control with, such Person; provided that a Person will not be deemed to
-Control another Person if the only indicia of such Control is voting control of
-more than 10% but less than 20% of outstanding, publicly traded equity
-securities of such other Person.
-(b)                                 “Control”
-(including the terms “Controlled by” and “under common Control with”) means, as
-used with respect to any Person, possession, directly or indirectly or as a
-trustee or executor, of power to direct or cause the direction of management or
-policies of such Person (whether through ownership of voting securities, as
-trustee or executor, by agreement or otherwise).
-(c)                                  “Person”
-means an individual, corporation, partnership, limited liability company, joint
-venture, trust, unincorporated organization or other entity.
-(d)                                 Other
-terms used but not defined herein have the respective meanings given to such
-terms in the Purchase Agreement.
-ARTICLE 2
-MISCELLANEOUS
-2.1                                 Validity.  Sellers acknowledge that the Non-Disclosure,
-Non-Competition and Non-Solicitation covenants set forth in Article 1 are
-necessary to protect the Buyer from competing efforts and to insure that the
-Buyer receives the benefits for which it has paid by closing under the Purchase
-Agreement.  If either the
-Non-Disclosure, Non-Competition or Non-Solicitation provisions contained in
-this Agreement are held by a court of competent jurisdiction to be
-unenforceable under applicable law with respect to duration or scope of the
-agreements, then the Non-Disclosure Agreement, Non-Competition Agreement or
-Non-Solicitation Agreement, as applicable, will be deemed unenforceable in such
-part or parts of the Territory for such lesser period of time and for such
-limited scope as is permissible under applicable law.
-2.2                                 Waiver.  The Buyer’s failure to enforce any provision
-of this Agreement will not in any way be construed as a waiver of any such
-provision or prevent the Buyer thereafter from enforcing each and every
-provision of this Agreement.
-2.3                                 Applicable
-Law, Jurisdiction, and Venue.  This
-Agreement shall be governed by, and construed in accordance with, the Laws of
-the State of Colorado applicable to agreements made and to be performed wholly
-within such jurisdiction.  The parties
-hereby irrevocably and unconditionally consent to the exclusive jurisdiction of
-the courts of the State of Colorado and of the United States of America, in
-each case located in the County of Denver, for any litigation arising out of or
-relating to this Agreement, and further agree that service of any process,
-summons, notice or document by U.S. registered mail to its respective address
-set forth in this Agreement shall be effective service of process for any litigation
-brought against it in any such court.
-The parties hereby irrevocably and unconditionally waive any objection
-to the laying of venue of any litigation arising out of this Agreement in the
-courts of the State of Colorado or the United States of America, in each case,
-located in the County of Denver, and hereby further
-3
-irrevocably and
-unconditionally waive and agree not to plead or claim in any such court that
-any such litigation brought in any such court has been brought in an
-inconvenient forum.
-2.4                                 Attorney
-Fees.  If any action at law or in
-equity is brought to enforce or interpret the terms of this Agreement, the
-prevailing party shall be entitled to its reasonable attorneys’ fees, costs,
-expert witness fees and all other disbursements in addition to any other relief
-to which it or he may be entitled.
-2.5                                 Modification.  This Agreement may not be amended or
-modified by the parties except by a written agreement executed by both parties.
-2.6                                 Headings
-or Captions.  Headings or captions
-contained in this Agreement have been inserted herein only as a matter of
-convenience and in no way define, limit, extend or describe the scope of this
-Agreement or the intent of any provision hereof.
-2.7                                 Construction.  Unless the context of this Agreement clearly
-requires otherwise:  (i) references to
-the plural include the singular and vice versa; (ii) references to one gender
-include all genders; (iii) “including” is not limiting; (iv) “or” has the
-inclusive meaning represented by the phrase “and/or”; (v) the words “hereof”,
-“herein”, “hereby”, “hereunder” and similar terms in this Agreement refer to
-this Agreement as a whole and not to any particular provision of this
-Agreement; (vi) section and clause references are to this Agreement unless
-otherwise specified; (vii) reference to any agreement (including this
-Agreement), document or instrument means such agreement, document or instrument
-as amended or modified and in effect from time to time in accordance with the terms
-thereof and, if applicable, the terms hereof; and (vii) general or specific
-references to any Law mean such Law as amended, modified, codified or
-reenacted, in whole or in part, and in effect from time to time, unless the
-effect thereof is to reduce, limit or otherwise prejudicially affect any
-obligation or any right, power or remedy hereunder, in which case such
-amendment, modification, codification or reenactment will not, to the maximum
-extent permitted by Law, form part of this Agreement and is to be disregarded
-for purposes of the construction and interpretation hereof.
-2.8                                 Counterparts.  This Agreement may be executed by the
-parties on any number of separate counterparts, and all such counterparts so
-executed constitute one agreement binding on all the parties notwithstanding
-that all the parties are not signatories to the same counterpart.
-2.9                                 Entire
-Agreement.  This Agreement and the
-Purchase Agreement and the documents referred to therein constitute the entire
-agreement among the parties pertaining to the subject matter hereof and
-supersede all prior agreements, letters of intent, understandings, negotiations
-and discussions of the parties, whether oral or written.
-2.10                           Failure
-or Delay.  No failure on the part of
-any party to exercise, and no delay in exercising, any right, power or
-privilege hereunder operates as a waiver thereof; nor does any single or
-partial exercise of any right, power or privilege hereunder preclude any other
-or further exercise thereof, or the exercise of any other right, power or
-privilege.  No notice to or demand on
-any party in any case entitles such party to any other or further notice or
-demand in similar or other circumstances.
-4
-2.11                           Notice.  Any notice required or permitted to be given
-hereunder shall be sufficient if in writing and if hand delivered, sent by
-overnight courier, or sent by registered or certified mail, postage prepaid,
-addressed as follows:
-If to the Buyer:
-Level 3 Communications,
-  LLC
-1025 Eldorado Blvd.
-Broomfield, Colorado
-  80021
-Attention:  General Counsel
-With a copy to:
-Otten, Johnson,
-  Robinson, Neff & Ragonetti, P.C.
-1600 U.S. Bank Tower
-950 Seventeenth Street
-Denver, Colorado 80202
-Attention:  Steven E. Segal, Esq.
-If to Sellers:
-ICG Communications,
-  Inc.
-161 Inverness Drive
-  West
-Englewood, Colorado
-  80112
-Attention:  General Counsel
-[Signatures on following
-page]
-5
-IN WITNESS WHEREOF, Sellers and the Buyer have executed this Agreement
-effective as of the date first written above.
-ICG
-  COMMUNICATIONS, INC.
-By:
-Name:
-Title:
-ICG
-  TELECOM GROUP, INC.
-By:
-Name:
-Title:
-LEVEL
-  3 COMMUNICATIONS, LLC
-By:
-Name:  Robert M. Yates
-Title:  Senior Vice President and
-Assistant
-  General Counsel
-Signature Page to
-Non-Competition Agreement

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@@ -1,133 +0,0 @@
-                         MUTUAL NONDISCLOSURE AGREEMENT
-                            Effective Date: 12/10/98
-     This Agreement governs the disclosure of information by and between Yahoo!
-Inc., a California corporation, and Restrac, Inc. ("Participant").
-     1. The "Confidential Information" is that confidential, proprietary, and
-trade secret information being disclosed by the disclosing party described as
-(please be specific):
-          (a) Yahoo Confidential Information (owned by Yahoo and any of its
-     affiliates): Resume and Employment Related.
-          (b) Participant Confidential Information: Resume and Employment
-     Related.
-     2. Except as set forth in this Section 2, all Confidential Information
-shall be in tangible form and shall be marked as Confidential or proprietary
-information of the disclosing party. If the Confidential Information is
-disclosed orally or visually, it shall be identified as such at the time of
-disclosure and confirmed in a writing to the recipient within thirty (30) days
-of such disclosure.
-     3. Each of the parties agrees that it will not make use of, disseminate, or
-in any way disclose any Confidential Information of the other party to any
-person, firm or business, except to the extent necessary for negotiations,
-discussions and consultations with personnel or authorized representatives of
-the other party and any purpose the other party may hereafter authorize in
-writing. Each of the parties agrees that it shall disclose Confidential
-Information of the other party only to those of its employees who need to know
-such information and who have previously agreed, either as a condition to
-employment or in order to obtain the Confidential Information, to be bound by
-terms and conditions substantially similar to those of this Agreement.
-     4. There shall be no liability for disclosure or use of Confidential
-Information which is (a) in the public domain through no fault of the receiving
-party (b) rightfully received from a third party without any obligation of
-confidentiality, (c) rightfully known to the receiving party without any
-limitation on use or disclosure prior to its receipt from the disclosing party,
-(d) independently developed by the receiving party, (e) generally made available
-to third parties without any restriction on disclosure, or (f) communicated in
-response to a valid order by a court or other governmental body, as otherwise
-required by law, or as necessary to establish the rights of either party under
-this Agreement (provided that the party so disclosing has provided the other
-party with a reasonable opportunity to seek protective legal treatment for such
-Confidential Information).
-     5. "Residual Information" shall mean any Confidential Information of the
-disclosing party which may be retained in intangible form in the minds of those
-individuals of the receiving party who have had proper access to such
-Confidential Information. Notwithstanding anything else in this Agreement, the
-receiving party shall be free to use any Residual Information for any purpose
-whatsoever, including, without limitation, the development of its own products,
-provided that such party shall not be entitled to disclose Residual Information
-to any third parties unless such disclosure is in the course of, or as part of,
-any disclosure of its own products or their development.
-     6. Each of the parties agrees that it shall treat all Confidential
-Information of the other party with the same degree of care as it accords to its
-own Confidential Information and each of the parties represents that it
-exercises reasonable care to protect its own Confidential Information.
-     7. Each of the parties agrees that it will not modify, reverse engineer,
-decompile, create other works from, or disassemble any software programs
-contained in the Confidential Information of the other party unless otherwise
-specified in writing by the disclosing party.
-<PAGE>
-     8. All materials (including, without limitation, documents, drawings,
-models, apparatus, sketches, designs and lists) furnished to one party by the
-other, and which are designated in writing to be the property of such party,
-shall remain the property of such party and shall be returned to it promptly at
-its request, together with any copies thereof.
-     9. This Agreement shall govern all communications between the parties that
-are made during the period from the effective date of this Agreement to the date
-on which either party receives from the other written notice that subsequent
-communications shall not be so governed, provided, however that each party's
-obligations under Sections 2 and 3 with respect to Confidential Information of
-the other party which it has previously received shall continue unless and until
-such Confidential Information falls within Sections 4 or 5.
-     10. Neither party shall communicate any information to the other in
-violation of the proprietary rights of any third party. Neither party acquires
-any licenses under any intellectual property rights of the other party under
-this Agreement. This Agreement shall be governed in all respects by the laws of
-the United States of America and by the laws of the State of California as such
-laws are applied to agreements entered into and to be performed entirely within
-California between California residents. This Agreement may only be changed by
-mutual agreement of authorized representatives of the parties in writing. All
-notices or reports permitted or required under this Agreement shall be in
-writing and shall be by personal delivery, telegram, telex, telecopier,
-facsimile transmission or by certified or registered mail, return receipt
-requested, and shall be deemed given upon personal delivery, five (5) days after
-deposit in the mail, or upon acknowledgment of receipt of electronic
-transmission. Notices shall be sent to the addresses set forth at the end of
-this Agreement or such other address as either party may specify in writing.
-     IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
-as of the date first written above.
-<TABLE>
-<S>                                                  <C>
-YAHOO! INC.
-                                                     --------------------------------------------
-By:  /s/ Matt Rowlen                                 By:  /s/ M.  J. Fahey
-    -------------------------------------                 ---------------------------------------
-Printed Name:  Matt Rowlen                           Printed Name:  M. J. Fahey
-              ---------------------------                           -----------------------------
-Title:   Manager of Business Development             Title:  President
-         --------------------------------                    ------------------------------------
-Address:  Yahoo!                                     Address:  Lexington, MA
-         --------------------------------                      ----------------------------------
-         --------------------------------                      ----------------------------------
-         --------------------------------                      ----------------------------------
-</TABLE>

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-<PAGE>   1
-                                                                  EXHIBIT 10.36
-                        MUTUAL NON-DISCLOSURE AGREEMENT
-THIS AGREEMENT is made this _________ day of ___________, 19 ___, by and
-between __________________________ ("Company" and Phoenix International Ltd.,
-Inc. ("Phoenix"), having its principal place of business at 900 Winderley
-Place, Suite 140, Maitland, Florida 32751.
-                                    RECITALS
-WHEREAS, Phoenix and Company mutually desire to engage in discussions
-concerning a possible business relationship for the development and/or
-licensing of software products and, in furtherance of those discussions may
-find it necessary and advantageous to disclose to each other, certain
-confidential information regarding software products and strategic plans; and
-WHEREAS, Company and Phoenix consider such documents, records and information
-pertaining to products confidential and do not want them disclosed to third
-parties;
-NOW, THEREFORE IN CONSIDERATION of the mutual covenants and conditions herein
-contained, the parties agree as follows:
-1.   Phoenix and Company agree that they shall hold in confidence and shall
-     not disclose any Confidential Information (as defined in Paragraph 2
-     below) without the prior written authorization from a corporate officer of
-     the party to whom the information belongs nor use such Confidential
-     Information for any purpose other than that contemplated by this
-     Agreement.  This obligation, however, shall not extend to any of the
-     following:
-      A.   Confidential Information which at the time of disclosure is
-           in the public domain;
-      B.   Confidential Information which after generation or disclosure
-           is published or otherwise becomes part of the public domain through
-           no fault of the disclosing party (but only after and to the extent
-           that it is published or otherwise becomes part of the public
-           domain);
-      C.   Confidential Information which either party can show was in
-           its possession at the time of generation or disclosure and was not
-           acquired, directly or indirectly, from the other party or from a
-           third party under obligation of confidence;
-      D.   Confidential Information which was received after the time of
-           generation or disclosure hereunder, from a third party who did not
-           require that party to hold it in confidence and who did not acquire
-           it, directly or indirectly, form the other party under an obligation
-           of confidence; and
-<PAGE>   2
-      E.   Confidential Information which Phoenix and Company can show
-           was developed independently without benefit of, or based on
-           information generated hereunder or made available by the other
-           party.
-2.   "Confidential Information" shall be deemed to include the source and
-     object code computer programs and associated documentation, manuals and
-     other printed or visually acceptable materials describing the use or
-     design of software and strategic plans as well as any other information,
-     oral or written, which shall be so noted on its face as being confidential
-     or proprietary to the disclosing party.
-3.   Each party shall exercise such care in the protection of the confidential
-     information of the other as they exercise in the protection of
-     confidential information of their own.
-4.   Rights and obligations of this Agreement shall be binding upon the heirs,
-     assigns and successors of Phoenix and Company.
-5.   At the termination of this examination, both parties agree to return to
-     each other all of the documents and other information provided in
-     connection with this examination, and all copies thereof, as soon as
-     requested by the other party.
-6.   Phoenix and Company warrant that they have the unqualified right to
-     disclose fully the Confidential Information disclosed hereunder.
-7.   Phoenix and Company agree to maintain as Confidential Information, the
-     existence of these discussions regarding a possible business relationship,
-     until an agreement is completed.
-     IN WITNESS HEREOF, the parties hereto by their duly authorized
-     representatives have executed this Agreement as of the date first written
-     above.
-PHOENIX INTERNATIONAL LTD., INC.
-By:                                By:
-     ----------------------------       ----------------------------
-     Authorized Signature               Authorized Signature
-     ----------------------------       ----------------------------
-     Type or Print Name and Title       Type or Print Name and Title
-     ----------------------------       ----------------------------
-     Date                               Date

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-<PAGE>   1
-                                                                  EXHIBIT 10.37
-                    CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
-                   PERMITTING ACCESS TO SYSTEM DOCUMENTATION
-                       AND DATA FILES FOR DATA CONVERSION
-THIS CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT PERMITTING ACCESS TO SYSTEM
-DOCUMENTATION AND DATA FILES FOR DATA CONVERSION (hereinafter referred to as
-the "Agreement") is made and entered into as of the last day and year written
-below by and between Phoenix International Ltd., Inc., a Florida Corporation,
-of 900 Winderley Place, Suite 140, Maitland, Florida  32751 ("Company"), and
-the following parties:
-<TABLE>
-<S>                                          <C>
-CLIENT:                                      RECIPIENT:
--------------------------------------------  -------------------------------------------------------
--------------------------------------------  -------------------------------------------------------
--------------------------------------------  -------------------------------------------------------
-Contact:                                     Contact:
-        -----------------------------------          -----------------------------------------------
-Telephone:                                   Telephone:
-          ---------------------------------            ---------------------------------------------
-(above party is hereinafter to as "Client")  (above party is hereinafter referred to as "Recipient")
-</TABLE>
-                             Purpose of Agreement:
-Company has developed, owns, uses, or re-markets certain confidential and
-proprietary computer software and related documentation and materials (all of
-which shall collectively be referred to hereinafter as "Application Software"),
-which Application Software is used to process certain of Client's data pursuant
-to a separate license or service agreement between Company and Client.  Client
-desires that certain of its data being processed by the Application Software be
-converted to another software program (hereinafter referred to as the
-"Conversion"), and Client desires that Recipient assist with this Conversion.
-In order for Recipient to perform Recipient's job functions with Client, Client
-desires that Recipient have access to those data files of Client and to those
-portions of the documentation for the Application Software which are
-specifically identified in Paragraph 1 below (those items identified in
-Paragraph 1 shall collectively be hereinafter referred to as the "Confidential
-Information").  Recipient, on its own behalf and on behalf of its employees,
-agrees to abide by the terms of this Agreement.  Company and Client agree to
-permit Recipient to have access to the Confidential Information as requested
-herein by Client, but only in accordance with the terms of this Agreement.
-Therefore, in consideration of the premises hereof, and other good and valuable
-consideration not herein recited but the receipt and sufficiency of which are
-hereby acknowledged, the parties hereto agree as follows:
-<PAGE>   2
-CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
-      1.   Grant of Access to Confidential Information.  Company and
-           Client hereby agree to permit Recipient to have access to the
-           Confidential Information listed below for the sole purpose of
-           assisting Client with the Conversion, and such access is granted
-           solely upon the terms and conditions set forth in this Agreement.
-           This Agreement DOES NOT grant to Recipient the right to have access
-           to any portion of the Application Software other than the
-           documentation specifically set forth below.  The Confidential
-           Information to be disclosed is as follows:
-Client data files to be Deconverted:
-                                    -----------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
-Application Software Documentation to be Provided to Recipient:
-                                                               --------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
-      2.   Confidential Nature of Application Software and Confidential
-           Information.  Recipient acknowledges that the Application Software
-           and all documentation and related materials are proprietary to
-           Company and are confidential and constitute a valuable asset of
-           Company, and that the data files contained in the Confidential
-           Information are proprietary to Client and are confidential and
-           constitute a valuable asset of Client.  Recipient agrees to
-           safeguard the Confidential Information, and Recipient shall not
-           disclose or give access to the Confidential Information to any
-           person or entity other than those employees of Recipient who have a
-           need for such access in order to assist Client with Conversion.
-      3.   Unauthorized Use.  Recipient shall not make any unauthorized
-           use or disclosure of the Confidential Information and Recipient
-           shall promptly advise Company and Client in writing if Recipient
-           learns of any unauthorized use or disclosure of the Confidential
-           Information or Application Software by anyone, whether an employee,
-           former employee or agent of Recipient, or others, and shall
-           immediately take all reasonable steps within Recipient's power to
-           stop any unauthorized use or disclosure of the Confidential
-           Information or Application Software by anyone.  Recipient shall not,
-           and it will not permit anyone else, to copy the Confidential
-           Information or Application Software.
-      4.   Termination.  In the event an employee of Recipient
-           terminates his or her employment with Recipient, Recipient agrees to
-           require such terminated employee to immediately return to Recipient
-           all copies of the Confidential Information in such employee's
-           possession at the time of termination of employment.  Recipient
-           shall, upon the earlier occurrence of (i) completion of the tasks
-           assigned to it by Client which require access to the Confidential
-<PAGE>   3
-CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT
-           Information, or (ii) Recipient's termination of employment with
-           Client, return to Client all copies of the Confidential Information.
-      5.   Injunctive Relief.  Recipient acknowledges that the use or
-           disclosure of the Confidential Information or Application Software
-           by Recipient (including any of its employees or anyone who obtains
-           the Confidential Information or Application Software or gains access
-           thereto from or through Recipient or any of its employees) in a
-           manner inconsistent with this Agreement will cause Company or Client
-           as the case may be, irreparable damage.  In such event, Company and
-           Client shall have the right to equitable and injunctive relief to
-           prevent any unauthorized use or disclosure, and to such damages as
-           are occasioned by any such unauthorized use or disclosure, including
-           but not limited to reasonable attorneys' fees and costs incurred in
-           enforcing Company's or Client's rights hereunder.
-      6.   Miscellaneous.  This agreement shall be governed by,
-           interpreted in accordance with, and enforced under the laws of the
-           State of Florida.  Recipient and Client hereby agree and acknowledge
-           that Company is a benefited third party to this Agreement.
-           Modification of this Agreement must be in writing and signed by all
-           parties.
-      IN WITNESS WHEREOF, the parties hereto have executed this Addendum in
-      manner and form sufficient to bind them on the day and year indicated
-      after their respective execution hereof.
-      CLIENT:                       RECIPIENT:
-      ----------------------------  ----------------------------
-      Authorized Signature          Authorized Signature
-      ----------------------------  ----------------------------
-      Type or Print Name and Title  Type or Print Name and Title
-      ----------------------------  ----------------------------
-      Date                          Date
-      PHOENIX INTERNATIONAL LTD., INC.
-      ----------------------------
-      Authorized Signature
-      ----------------------------
-      Type or Print Name and Title
-      ----------------------------
-      Date

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-<PAGE>   1
-                                                            Exhibit d(3)
-                                 DTM CORPORATION
-                               1611 Headway Circle
-                                   Building 2
-                            Austin, Texas 78754-5138
-                                 March 17, 2001
-3D Systems Corporation
-26081 Avenue Hall
-Valencia, California  91355
-                            Confidentiality Agreement
-Ladies and Gentlemen:
-     In connection with the possible transaction (the "Proposed Transaction")
-between DTM Corporation (together with its subsidiaries, "DTM") and 3D Systems
-Corporation (together with its subsidiaries, "3D"), and in order to allow DTM
-and 3D to evaluate the Proposed Transaction, each of DTM and 3D have and will
-deliver to the other party hereto, upon the execution and delivery of this
-letter agreement by such other party, certain information about its properties,
-employees, finances, businesses and operations (such party when disclosing such
-information being the "Disclosing Party" and when receiving such information
-being the "Receiving Party"). All information (i) about the Disclosing Party or
-(ii) about a third party (which information was provided to the Disclosing Party
-subject to a confidentiality agreement with such third party) furnished by the
-Disclosing Party or its Representatives (as defined below) to the Receiving
-Party or its Representatives, whether furnished before or after the date hereof
-in connection with the Proposed Transaction, and regardless of the manner in
-which it is furnished, is referred to in this letter agreement as "Evaluation
-Material." Evaluation Material shall not include, however, information which (i)
-is or becomes generally available to the public other than as a result of a
-disclosure by the Receiving Party or its Representatives in violation of this
-letter agreement; (ii) was available to the Receiving Party on a nonconfidential
-basis prior to its disclosure by the Disclosing Party or its Representatives;
-(iii) becomes available to the Receiving Party on a nonconfidential basis from a
-person other than the Disclosing Party or its Representatives who is not
-otherwise bound by a confidentiality agreement with the Disclosing Party or any
-of its Representatives, or is otherwise not known to the Receiving Party to be
-under an obligation to the Disclosing Party or any of its Representatives not to
-transmit the information to the Receiving Party; or (iv) was independently
-developed by the Receiving Party without reference to or use of the Evaluation
-Material. For purposes of this letter agreement, (i) "Representative" shall
-mean, as to any person, its directors, officers, employees, agents and advisors
-(including, without limitation, financial advisors, attorneys and accountants)
-and debt and equity financing sources and their advisors and Representatives
-(but shall not include any debt and equity financing sources that enter into a
-confidentiality agreement reasonably
-<PAGE>   2
-acceptable to the Disclosing Party, which either names Disclosing Party as a
-third party beneficiary or to which Disclosing Party is made a party, and an
-executed copy of which is provided to Disclosing Party); and (ii) "person" shall
-be broadly interpreted to include, without limitation, any corporation, company,
-partnership, other entity or individual.
-     Subject to the immediately succeeding paragraph, unless otherwise agreed to
-in writing by the Disclosing Party, the Receiving Party (i) except as required
-by law, rule or regulation, shall keep all Evaluation Material confidential,
-shall not disclose or reveal any Evaluation Material to any person other than
-its Representatives who are actively and directly participating in its
-evaluation of the Proposed Transaction or who otherwise need to know the
-Evaluation Material for the purpose of evaluating the Proposed Transaction and
-shall cause those persons to observe the terms of this letter agreement; (ii)
-shall not use Evaluation Material for any purpose other than in connection with
-its evaluation of the Proposed Transaction or the consummation of the Proposed
-Transaction in a manner that the Disclosing Party has approved; and (iii) except
-as required by law, rule or regulation, shall not disclose to any person (other
-than those of its Representatives who are actively and directly participating in
-its evaluation of the Proposed Transaction or who otherwise need to know for the
-purpose of evaluating the Proposed Transaction, which Representatives it shall
-cause to observe the terms of this agreement,) any information about the
-Proposed Transaction, or the terms or conditions or any other facts relating
-thereto, including, without limitation, the fact that discussions are taking
-place with respect thereto or the status thereof, or the fact that Evaluation
-Material has been made available to the Receiving Party or its Representatives.
-The Receiving Party shall be responsible for any breach of the terms of this
-letter agreement by it and secondarily responsible for any breach of the terms
-of this letter agreement by its Representatives. The parties agree that
-notwithstanding the generality of the foregoing, the existence of any
-discussions shall not be disclosed in any court, governmental or other similar
-proceeding except as expressly permitted herein.
-     Notwithstanding the definition of Evaluation Material, nothing contained
-herein shall be deemed to prohibit the Disclosing Party or the Receiving Party
-from utilizing any information obtained pursuant to discovery or other
-mediation, arbitration, court, or administrative proceedings even though such
-information also was provided hereunder as Evaluation Material; provided that
-neither the Disclosing Party or the Receiving Party shall utilize any Evaluation
-Material in connection with such proceeding unless acquired in such proceeding.
-     In the event that the Receiving Party or any of its Representatives are
-requested pursuant to, or required by, applicable law or regulation (including,
-without limitation, any rule, regulation or policy statement of any national
-securities exchange, market or automated quotation system on which any of the
-Receiving Party's securities are listed or quoted) or by legal process to
-disclose any Evaluation Material or any other information concerning the
-Disclosing Party or the Proposed Transaction, the Receiving Party shall provide
-the Disclosing Party with prompt notice of such request or requirement in order
-to enable the Disclosing Party (i) to seek an appropriate protective order or
-other remedy, (ii) to consult with the Receiving Party with respect to the
-Receiving Party's taking steps to resist or narrow the scope of such request or
-legal process, or (iii) to waive compliance, in whole or in part, with the terms
-of this letter agreement. In the event that such protective order or other
-remedy is not obtained, or the Disclosing Party waives compliance, in whole or
-in part, with the terms of this letter agreement,
-                                       2
-<PAGE>   3
-the Receiving Party or its Representative shall use good faith efforts to
-disclose only that portion of the Evaluation Material which is legally required
-to be disclosed and to cooperate with the Disclosing Party in its efforts to
-obtain reliable assurance that all Evaluation Material that is so disclosed will
-be accorded confidential treatment to the fullest extent available. In the event
-that the Receiving Party or its Representatives, as the case may be, shall have
-complied with the provisions of this paragraph, such disclosure may be made by
-the Receiving Party or its Representatives, as applicable, without any liability
-hereunder.
-     For a period (the "Restricted Period") commencing with the date of this
-letter agreement and ending on the earlier of (i) 15 months after the
-termination of discussions between the parties with respect to a Proposed
-Transaction and (ii) the occurrence of a "Significant Event" (as defined below),
-neither party hereto nor any of its Representatives shall, without the prior
-written consent of the other party or its board of directors or any committee
-thereof delegated the responsibility for such matters:
-     (a)  acquire, offer to acquire, or agree to acquire, directly or
-          indirectly, by purchase or otherwise, any voting securities or direct
-          or indirect rights to acquire any voting securities of the other party
-          or any subsidiary of the other party, or of any successor to or person
-          in control of the other party, or any material assets of the other
-          party or any subsidiary or division of the other party or of any such
-          successor or controlling person;
-     (b)  make, or in any way participate, directly or indirectly, in any
-          "solicitation" of "proxies" to vote (as such terms are used in the
-          rules of the Securities and Exchange Commission (the "SEC")), or seek
-          to advise or influence any person or entity with respect to the voting
-          of any voting securities of the other party;
-     (c)  make any public announcement with respect to, or submit a proposal or
-          offer (with or without conditions) in connection with any of the
-          foregoing;
-     (d)  form, join or in any way participate in a "group" as defined in
-          Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
-          (the "Exchange Act"), in connection with any of the foregoing;
-     (e)  otherwise act or seek to control or influence the management, Board of
-          Directors or policies of the other party;
-     (f)  take any action that could reasonably be expected to require the other
-          party to make a public announcement regarding the possibility of any
-          of the events described in clauses (a) through (e) above; or
-                                       3
-<PAGE>   4
-     (g)  request the other party or any of its Representatives, directly or
-          indirectly, to amend or waive any provision of this paragraph.
-During the Restricted Period, each party hereto shall promptly advise the other
-party of any inquiry or proposal made to it with respect to any of the
-foregoing. For purposes of this letter agreement, (i) "Significant Event" shall
-mean, with respect to each of the parties hereto, any of (A) the acquisition by
-any person or "13D Group" (as defined below) of beneficial ownership of "Voting
-Securities" (as defined below) of such party representing 15% or more of the
-then outstanding Voting Securities of such party; (B) the announcement or
-commencement by any person or 13D Group of a tender or exchange offer to acquire
-Voting Securities of such party which, if successful, would result in such
-person or 13D Group owning, when combined with any other Voting Securities of
-such party owned by such person or 13D Group, 15% or more of the then
-outstanding Voting Securities of such party; or (C) the entry into by such
-party, or determination by such party to seek to enter into, any merger, sale or
-other business combination transaction pursuant to which the outstanding shares
-of common stock of such party would be converted into cash or securities of
-another person or 13D Group or 50% or more of the then outstanding shares of
-common stock of such party would be owned by persons other than the then current
-holders of shares of common stock of such party, or which would result in all or
-a substantial portion of such party's assets being sold to any person or 13D
-Group; (ii) "Voting Securities" shall mean, with respect to each party hereto,
-at any time shares of any class of capital stock of such party which are then
-entitled to vote generally in the election of directors; provided, that for
-purposes of this definition any securities which at such time are convertible or
-exchangeable into or exercisable for shares of common stock of such party shall
-be deemed to have been so converted, exchanged or exercised; and (iii) "13D
-Group" shall mean, with respect to the Voting Securities of each party hereto,
-any group of persons formed for the purpose of acquiring, holding, voting or
-disposing of such Voting Securities which would required under Section 13(d) of
-the Exchange Act and the rules and regulations thereunder to file a statement on
-Schedule 13D with the SEC as a "person" within the meaning of Section 13(d)(3)
-of the Exchange Act if such group beneficially owned Voting Securities
-representing more than 5% of the total combined voting power of all such Voting
-Securities then outstanding.
-     For a period of two (2) years subsequent to the termination of discussions
-between the parties with respect to the Proposed Transaction, neither party
-shall, without prior written consent of the other party, directly or indirectly
-solicit for hire, any person currently employed by the other party (or any of
-its subsidiaries); provided, however, that the foregoing provision shall not
-prevent either party, without such consent, from employing any employee who (i)
-contacts the hiring party directly at his or her own initiative without any
-direct or indirect solicitation by or encouragement from the hiring party or
-(ii) responds to a mass media solicitation or advertisement consistent with the
-hiring party's past practices that is not directed at employees of the other
-party.
-     To the extent that any Evaluation Material may include material 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
-                                       4
-<PAGE>   5
-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 to the fullest extent available under applicable law.
-Nothing in this letter agreement obligates any party to reveal material subject
-to the attorney-client privilege, work product doctrine or any other applicable
-privilege.
-     If either party hereto shall determine that it does not wish to proceed
-with the Proposed Transaction, such party shall promptly advise the other party
-of that decision. In that case, or in the event that the Disclosing Party, in
-its sole discretion, so requests or the Proposed Transaction is not consummated
-by the Receiving Party, the Receiving party shall, upon the Disclosing Party's
-written request, promptly deliver to the Disclosing Party all Evaluation
-Material, and, at the Receiving Party's election, return or destroy (provided
-that any such destruction shall be certified by a duly authorized Representative
-of the Receiving Party) all copies, reproductions, summaries, analyses or
-extracts thereof, including any electronic or computer file copies, or based
-thereon in the Receiving Party's possession or in the possession of any
-Representative of the Receiving Party.
-     Subject to the terms and conditions of a definitive agreement regarding the
-Proposed Transaction and without prejudice thereto, each party hereto
-acknowledges that neither it nor its Representatives nor any of the officers,
-directors, employees, agents or controlling persons of such Representatives
-makes any express or implied representation or warranty as to the completeness
-of the Evaluation Material. The Receiving Party shall not be entitled to rely on
-the completeness of any Evaluation Material, but shall be entitled to rely
-solely on such representations and warranties regarding the completeness of the
-Evaluation Material as may be made to it in any definitive agreement relating to
-the Proposed Transaction, subject to the terms and conditions of such agreement.
-     Until a definitive agreement regarding the Proposed Transaction has been
-executed by the parties hereto and subject to the terms and conditions of that
-certain letter agreement dated as of March 17, 2001 between the company and the
-Interested Party (the "Exclusivity Agreement"), neither party hereto shall be
-under any legal obligation or have any liability to the other party of any
-nature whatsoever with respect to the Proposed Transaction by virtue of this
-letter agreement or otherwise (other than with respect to the confidentiality
-and other matters set forth herein). Subject to the terms and conditions of the
-Exclusivity Agreement, each party hereto and its Representatives (i) may conduct
-the process that may or may not result in the Proposed Transaction in such
-manner as such party, in its sole discretion, may determine (including, without
-limitation, negotiating and entering into a definitive agreement with any third
-party without notice to the other party) and (ii) reserves the right to change
-(in its sole discretion, at any time and without notice to such other party) the
-procedures relating to the consideration of the Proposed Transaction (including,
-without limitation, terminating all further discussions with the other party and
-requesting that such other party return or destroy the Evaluation Material as
-described above).
-     Without prejudice to the rights and remedies otherwise available to either
-party hereto, each party shall be entitled to equitable relief by way of
-injunction or otherwise if the other party or any of its Representatives breach
-or threaten to breach any of the provisions of this
-                                       5
-<PAGE>   6
-letter agreement. In the event of litigation relating to this letter agreement,
-if a court of competent jurisdiction determines in a final order from which
-there is no appeal that this letter agreement has been breached by a party or by
-its Representatives, the breaching party or the party whose Representatives have
-breached this letter agreement, as the case may be, will reimburse the other
-party for its costs and expenses (including, without limitation, reasonable
-legal fees and expenses) incurred in connection with the enforcement of this
-letter agreement and such litigation.
-     It is further understood and agreed that no failure or delay by either
-party hereto 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.
-     This letter agreement shall be governed by and construed in accordance with
-the laws of the State of Texas, without giving effect to its principles or rules
-regarding conflicts of laws, other than such principles directing application of
-Texas law.
-     This letter agreement contains the entire agreement between the parties
-hereto concerning confidentiality of the Evaluation Material, and no
-modification of this letter agreement or waiver of the terms and conditions
-hereof shall be binding upon either party hereto, unless approved in writing by
-each such party. This letter agreement supersedes and replaces the Mutual
-Non-Disclosure Agreement dated January 25, 2000 entered into previously between
-the parties; provided that the restrictions imposed by such previous letter
-agreement shall remain in effect for periods prior to the date hereof.
-     Please confirm your agreement with the foregoing by signing and returning
-to the undersigned the duplicate copy of this letter enclosed herewith.
-                              DTM CORPORATION
-                              By:  /s/    Anthony Mariotti
-                                  --------------------------------------------
-                                  Name:  Anthony Mariotti
-                                  Title: Director, Member of Special Committee
-ACCEPTED AND AGREED as of
-   the date hereof:
-3D SYSTEMS CORPORATION
-By:   /s/    Brian K. Service
-     ---------------------------------------------
-     Name:   Brian K. Service
-     Title:  President and Chief Executive Officer
-                                       6
-<PAGE>   7
-                      ACKNOWLEDGEMENT SIGNATURE PAGE FOR 3D
-                        DEBT AND EQUITY FINANCING SOURCES
-     The undersigned hereby agrees to be bound the terms of the letter agreement
-between DTM Corporation and 3D Systems Corporation to which this acknowledgement
-page is attached.
-----------------------
-Name of Representative
-By:
-   -------------------
-Name:
-      ----------------
-Title:
-      ----------------
-Dated:
-      ----------------
-                                       7

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@@ -1,245 +0,0 @@
-                 MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
-                          (PRE-RELEASE PRODUCT-GENERAL)
-         IMPORTANT: PLEASE COMPLETE THIS FORM AND RETURN IT TO MICROSOFT AT THE
-ADDRESS BELOW:
-         Upon receipt by Microsoft Corporation ("MS") of this Agreement, signed
-and completed by the individual or organization indicated below ("Recipient"),
-MS may elect, at MS' sole discretion, to provide Recipient with a pre-release
-copy of the MS product MSN Software Development Kit, and related documentation
-and information (collectively the "Product"). MS may, in its sole discretion,
-also provide further pre-releases of the Product or related information to
-Recipient hereunder, in which case such further pre-releases and related
-information shall also be covered hereunder as "Product".
-         1, GRANT OF LICENSE.
-         (a) MS grants to Recipient a limited, non-exclusive, nontransferable,
-royalty-free license to use up to five copies of the executable Product code on
-CPU's residing at Recipient's premises solely to test the compatibility of
-Recipient's application or other product(s) ("Application") which operate in
-conjunction with the Product and to evaluate the Product for the purpose of
-providing feedback thereon to MS. All other rights are reserved to MS. Recipient
-shall not rent, lease, sell, sublicense, assign, or otherwise transfer the
-Product, including any accompanying printed materials. Recipient may not reverse
-engineer, decompile or disassemble the Product except to the extent that this
-restriction is expressly prohibited by applicable law. MS and its suppliers
-shall retain title and all ownership rights to the Product.
-         (b) Recipient agrees to provide reasonable feedback to MS, including
-but not limited to beta reports, usability, bug reports and test results, with
-respect to the Product testing. Recipient will use reasonable efforts to review
-and comment on all documentation supplied. All bug reports, test results and
-other feedback made by Recipient shall be the property of MS and may be used by
-MS for any purpose. Due to the nature of the development work, MS is not certain
-as to when errors or discrepancies in the Products may be corrected.
-         (c) Recipient may disclose the Product only to its employees who have a
-need to know in order to accomplish the purposes identified in Section l(a), and
-such employees' use of the Product shall take place solely at Recipient's site.
-Recipient will have executed appropriate written agreements with its employees
-sufficient to enable it to comply with the terms of this Agreement.
-<PAGE>
-         2. REDISTRIBUTABLE COMPONENTS. MS further grants to recipient the
-following non-exclusive, nontransferable, royalty-free rights with respect to
-the sample and redistributable code listed in the readme.txt file.
-         (a) Subject to Section 2(b) below, to reproduce and distribute test
-version of Recipient's Application for use on The Microsoft Network ("MSN")
-created using the Product to MSN users provided you identify such Application as
-"BETA" and that you comply with Section 2(c), below.
-         (b) To modify the sample code provided with the Product and to
-reproduce and distribute such modifications in object code form for use on The
-Microsoft Network to MSN users provided you identify such Application as "BETA"
-and that you comply with Section 2(c), below.
-         (c) if you redistribute your Application as allowed under this
-Agreement, you must: (1) distribute the Product only in conjunction with and as
-part of your Application which is designed, developed and tested to operate on
-MSN; (2) not make any statements to the effect or which imply that your
-Application is "certified" by MS or that its performance is guaranteed by MS;
-(3) not use MS' name, logo, or trademarks to market your Application; and (4)
-agree to indemnify, hold harmless, and defend MS and its suppliers from and
-against any claims or lawsuits, including attorney's fees, that arise or result
-from your distribution of the Application.
-         (d) The Product shall not be used, modified, reproduced except as
-provided above and you agree to destroy or erase the copy of the Product upon
-MS' release of the Product in final form.
-         3. TERM OF AGREEMENT. The term of this Agreement shall commence on the
-Effective Date and shall continue until terminated by MS in writing at any time,
-with or without cause. This Agreement will terminate without notice upon the
-commercial release of the Product. Upon the termination of this Agreement,
-Recipient shall promptly return to MS. or certify destruction of, all full or
-partial copies of the Product and related materials provided by MS. Section 6
-shall survive termination or expiration of this Agreement with respect to any
-information that has not been made public by MS as of the commercial release of
-the Product.
-         4. COST OF TESTING. There is no charge to Recipient for testing of the
-Product. MS shall bear all transportation expenses relating to the shipment of
-the Product to Recipient's place of business and Recipient will pay any return
-transportation expenses.
-<PAGE>
-         5. PRODUCT MAINTENANCE. MS is not obligated to provide maintenance or
-updates to Recipient for the Product. However, any maintenance or updates
-provided by MS shall be covered by this Agreement.
-         6. CONFIDENTIALITY. The Product and related information is proprietary
-and confidential information to MS and its suppliers. Recipient agrees not to
-disclose or provide the Product, documentation, or any related information
-(including the Product features or the results of use or testing) to any third
-party or use the Product for any purpose other than as provided in this
-Agreement. However, Recipient may disclose confidential information in
-accordance with judicial or other governmental order, provided Recipient shall
-give MS reasonable written notice prior to such disclosure and shall comply with
-any applicable protective order or equivalent. Further, Recipient shall not be
-obligated to maintain the confidentiality of information which Recipient can
-prove (1) is already known to Recipient without an obligation to maintain the
-same as confidential; (2) becomes publicly known through no wrongful act of
-Recipient; (3) is rightfully received from a third party without breach of an
-obligation of confidentiality owed to MS; or (4) is independently developed by
-Recipient. This provision shall survive the termination or expiration of this
-Agreement with respect to any information that has not been made public by MS as
-of the commercial release of the Product.
-         7. DISCLAIMER OF WARRANTY. Product is deemed accepted by Recipient. The
-Product constitutes pre-release code and may be changed substantially before
-commercial release. The PRODUCT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY
-KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT FURTHER
-DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES
-OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE
-ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT AND
-DOCUMENTATION REMAINS WITH RECIPIENT. TO THE MAXIMUM EXTENT PERMITTED BY
-APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY
-CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES
-WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
-PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY
-LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE
-PRODUCT, EVEN IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
-BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
-LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT
-APPLY TO RECIPIENT.
-<PAGE>
-         8. GOVERNING LAW; ATTORNEYS FEES. This Agreement shall be governed by
-the laws of the State of Washington and Recipient further consents to
-jurisdiction by the state and federal courts sitting in the State of Washington.
-If either MS or Recipient employs attorneys to enforce any rights arising out of
-or relating to this Agreement, the prevailing party shall be entitled to recover
-reasonable attorneys' fees.
-         9. U.S. GOVERNMENT RESTRICTED RIGHTS. The Product is provided with
-RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject
-to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in
-Technical Data and Computer Software clause of DFARS 252.227-7013 or
-subparagraphs (c)(i) and (2) of the Commercial Computer Software -- Restricted
-Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Microsoft
-Corporation, One Microsoft Way, Redmond, WA 98052-6399.
-         10. EXPORT RESTRICTIONS. Recipient acknowledges that the Product
-licensed hereunder is subject to the export control laws and regulations of the
-U.S.A., and any amendments thereof. Recipient confirms that with respect to the
-Product, it will not export or re-export it, directly or indirectly, either to
-(i) any countries that are subject to U.S.A export restrictions (currently
-including, but not necessarily limited to, Cuba, the Federal Republic of
-Yugoslavia (Serbia and Montenegro), Haiti, Iran, Iraq, Libya, North Korea, South
-Africa (military and police entities), and Syria), (ii) any end user who
-Recipient knows or has reason to know will utilize them in the design,
-development or production of nuclear, chemical or biological weapons; or (iii)
-any end user who has been prohibited from participating in the U.S.A. export
-transactions by any federal agency of the U.S.A. government. Recipient further
-acknowledges that the Product may include technical data subject to export and
-re-export restrictions imposed by U.S.A. law.
-         11. ENTIRE AGREEMENT. This Agreement constitutes the complete and
-exclusive agreement between MS and Recipient with respect to the subject matter
-hereof, and supersedes all prior oral or written understandings, communications
-or agreements not specifically incorporated herein. This Agreement may not be
-modified except in a writing duly signed by an authorized representative of MS
-and Recipient.
-         12. PARTIES BOUND. If "Company Name" or a company address is filled in
-below, then the individual signing this Agreement represents that he/she has
-authority to execute this agreement on behalf of such company and agrees that
-Product (and any copies thereof) shall remain on the company premises, unless
-otherwise agreed by MS.
-<PAGE>
-         IN WITNESS WHEREOF. Recipient has caused this Agreement to he executed
-by its duly authorized representative.
-------------------------------------------------
-Beta Site ID
-------------------------------------------------
-Company Name
-------------------------------------------------
-Alpha Site Contact/Tester (Recipient)
-------------------------------------------------
-Company Authorized Representative's Signature
-------------------------------------------------
-Print Authorized Signature and Title
-------------------------------------------------
-Physical Address (No P.O. Boxes)
-------------------------------------------------
-City, State, Zip
-------------------------------------------------
-Phone Number
-------------------------------------------------
-Microsoft Network Member ID
-------------------------------------------------
-Date
----------------------------
-RETURN TO:
-WPG Beta Group Address.
-Microsoft Corporation
-Attn:
-One Microsoft Way
-Redmond, WA 98052-6399
----------------------------

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-<PAGE>
-                                                                  EXHIBIT (d)(2)
-                           Non-Disclosure Agreement
-This Non-Disclosure Agreement (the "Agreement") is entered into as of the 5th
-day of June, 2000, by and between Kaplan, Inc. located at 888 Seventh Avenue,
-New York, New York 10106 ("Kaplan") and Quest Education Corporation located at
-                           ------
-1400 Hembree Road, Suite 100, Roswell, Georgia 30076 ("Company").
-                                                       -------
-In order to pursue a potential strategic alliance, acquisition or other business
-relationship, Kaplan and Company recognize that there is a need to disclose to
-each other certain confidential information of each party to be used solely for
-the purpose of evaluating this opportunity.
-Each party intends to protect such confidential information of the other party
-from unauthorized use and disclosure.  In consideration of the disclosures, the
-parties hereby agree as follows:
-1.  This Agreement shall apply to: (a) confidential or proprietary exchanged
-material and information (in written, taped or computerized form or format) that
-is clearly and prominently marked "Proprietary or "Confidential" or that is not
-so marked but, by its nature, is such that it reasonably should be held in
-confidence, including, but not limited to, technical, developmental, marketing,
-editorial, sales, operating, performance, cost, know-how, computer programming
-techniques, and any new or planned programs and services; (b) the existence and
-substance of oral and written communications between the parties about the
-potential strategic alliance, acquisition or other business relationship; and
-(c) the existence of the discussions between Company and Kaplan about the
-potential strategic alliance, acquisition or other business relationship.
-(Subparagraphs (a), (b) and (c) above hereinafter referred to collectively as
-"Confidential Information.")
--------------------------
-2.  Each party agrees to hold the other's Confidential Information in confidence
-and to use it solely for the purposes contemplated herein and agrees further
-that the Confidential Information shall not be used for any other purpose nor
-disclosed to any third party without the prior written consent of the other
-party.   Each party agrees it shall apply the same level of confidential
-treatment to the other party's Confidential Information as it does to its own
-Confidential Information.
-3.  The parties may disclose the Confidential Information to their respective
-officers, directors, employees, attorneys, subsidiaries and affiliates working
-in connection with the purpose for which the Confidential Information is
-disclosed but only to the extent necessary to carry out that purpose and subject
-to all requirements of confidentiality set forth in this Agreement.  The party
-receiving the Confidential Information (the "Receiving Party") may also disclose
-                                             ---------------
-Confidential Information to a third party pursuant to paragraph 4(g) below and
-subject to the notice provision set forth therein.
-4.  The obligations under this Agreement shall not apply to information that is
-at any time: (a) already known to the Receiving Party at the time it is
-disclosed to the Receiving Party; (b) publicly known through no wrongful act of
-the Receiving Party; (c) rightfully received from a third party without
-restriction on disclosure and without breach of this Agreement; (d)
-independently developed by the Receiving Party; (e) approved for release by
-<PAGE>
-written authorization of the party disclosing the Confidential Information (the
-"Disclosing Party"); (f) furnished by the Disclosing Party to a third party
- ----------------
-without written restriction on disclosure; or (g) disclosed pursuant to a
-requirement of a governmental agency or of law, provided, however, that, to the
-                                                --------  -------
-extent viable under the circumstances, the party subject to the disclosure
-requirement has notified the Disclosing Party in advance of such disclosure and
-the Disclosing Party has had an opportunity to seek a protective order or other
-appropriate remedy and the party subject to the disclosure requirement has
-reasonably cooperated with such efforts; and provided further, however, that the
-                                             -------- -------  -------
-Receiving Party furnish only that portion of the Confidential Information that
-is legally required to be so disclosed.
-5.  The Receiving Party shall not reverse engineer, disassemble, decompile, or
-otherwise analyze, restructure and/or copy or in any way recreate in whole or in
-part any Confidential Information of the Disclosing Party.
-6.  If any party provides any of the other parties with written notification of
-its request for return of its Confidential Information, then the other
-party(ies) shall promptly return (unless destroyed pursuant to the immediately
-following sentence) to the notifying party all materials and information
-comprising the notifying party's Confidential Information, including any and all
-copies, facsimiles and reproductions thereof, and any other material containing
-or reflecting any materials or information in the Confidential Information.  All
-other documents, memoranda, notes and other writings whatsoever prepared by the
-Receiving Party or the Receiving Party's representatives based on the materials
-or information in the Confidential Information shall be destroyed and such
-destruction shall be confirmed in writing to the notifying party.
-7.  All right, title and interest in and to the Confidential Information and
-intellectual property produced based on the Confidential Information is and
-shall remain the sole property of the Disclosing Party.  Subject only to the
-Receiving Party's limited use of the Confidential Information for the purpose
-set forth above in this Agreement, the Receiving Party acknowledges and agrees
-that nothing in this Agreement shall be construed as granting any rights,
-license or otherwise, to any Confidential Information disclosed pursuant to this
-Agreement, and the Receiving Party shall not violate any of the Disclosing
-Party's intellectual property or other rights in or to the Confidential
-Information.
-8.  The parties hereby acknowledge that disclosure of any Confidential
-Information in violation of the terms hereof would cause irreparable harm to the
-Disclosing Party.  Without prejudice to the rights and remedies otherwise
-available, each party is entitled to equitable relief through injunction if the
-other party or any of its employees, agents or representatives breaches any
-provision of this Agreement.
-9.  The parties acknowledge that each has endeavored to include in the
-Confidential Information information which it believes to be reliable and
-relevant for the purpose first set forth above, however each party understands
-and acknowledges that neither party nor any of their respective representatives
-made or makes any representation or warranty as to the accuracy or completeness
-of the Confidential Information.  The parties further agree that neither party
-nor any of their respective representatives shall have any liability to the
-other party or any of such other party's representatives resulting from the  use
-or contents of the Confidential Information or from any action taken or inaction
-occurring in reliance on the
-                                       2
-<PAGE>
-Confidential Information.
-10.  This Agreement shall remain in effect for a period of one (1) year from the
-effective date hereof.
-11.  Each party acknowledges and agrees that nothing in this Agreement shall
-impose upon any party any obligation to consummate a transaction or to enter
-into any discussions or negotiations with respect thereto.  Further, each party
-understands that the other party may now market or have under development
-products and/or services which are competitive with the products or services now
-offered or which may be offered in the future by its own company.  Subject to
-the terms and conditions of this Agreement, discussions and/or communications
-between the parties hereto will not serve to impair the right of each party to
-develop, make, use, procure and/or market products or services now or in the
-future which may be competitive with those offered by the other party nor
-require either party to disclose any planning or other information to the other
-party, provided none of the foregoing activities violate the terms of this
-Agreement.
-12.  Any notice or other communication made or given by either party in
-connection with this Agreement shall be sent via registered or certified mail,
-postage prepaid, return receipt requested; by facsimile transmission, with
-confirmation of receipt; or by overnight courier service to the other party as
-follows:
-     If to Kaplan:                      If to Company:
-     Ross Hamachek                      Vince Pisano
-                                        -----------------------------
-     Kaplan, Inc.                       Quest Education Corp.
-                                        -----------------------------
-     888 Seventh Avenue, 23rd Fl.       1400 Hembree Road #100
-                                        -----------------------------
-     New York, NY 10106                 Roswell, GA 30076
-                                        -----------------------------
-     Facsimile: 212-492-5860
-     Copy to:                           Copy to:
-     Veronica Dillon, Esq.              Morris Brown, Esq.
-                                        -----------------------------
-     General Counsel                    Greenberg Traurig
-                                        -----------------------------
-     Kaplan , Inc.                      777 S. Flagler Dr. #300-E
-                                        -----------------------------
-     888 Seventh Avenue, 23rd Fl.       West Palm Beach, FL 33401
-                                        -----------------------------
-     New York, NY 10106
-                                        -----------------------------
-     Facsimile: 212-492-5860
-     Any party may by notice as set forth in this paragraph change the address
-to which further notices to it shall be mailed.
-13.  This Agreement shall be governed by and construed in accordance with the
-laws of the State of New York without regard to conflict of laws principles.
-The parties hereby consent and submit to personal jurisdiction of courts
-situated in New York County, New York, and all disputes arising in connection
-with the Agreement shall be heard only by a court of competent subject matter
-jurisdiction situated in New York County, New York.
-                                       3
-<PAGE>
-14.  This Agreement constitutes the entire understanding between the parties in
-connection with the subject matter hereof and supersedes and replaces all prior
-discussions, understandings and agreements (oral or written) related thereto.
-No amendment or modification of this Agreement shall be valid or binding on the
-parties unless made in writing and signed on behalf of each of the parties by
-its authorized officer or representative.
-15.  Neither party may assign or transfer, in whole or in part, any of its
-rights, obligations or duties under this Agreement.
-16.  The failure or delay of either party to enforce at any time any provision
-of this Agreement shall not constitute a waiver of such party's right thereafter
-to enforce each and every provision of this Agreement.  If any provision of this
-Agreement is held to be invalid, illegal, void, or unenforceable, then such
-provision shall be modified by the proper court or other authority to the extent
-necessary and possible to make such provision enforceable, and such modified
-provision and all other provisions of this Agreement shall be given effect
-separately from the provision or portion thereof determined to be invalid,
-illegal, void or unenforceable and shall not be affected thereby.
-17.  This Agreement may be executed (including by facsimile transmission) with
-counterpart signature pages or in several counterparts, each of which shall be
-deemed an original and all of which shall together constitute one and the same
-instrument.
-IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be executed
-as of the date written above.
-QUEST EDUCATION CORPORATION:            KAPLAN, INC.:
-By: Vince Pisano                        By: Ross Hamachek
-    -------------------------------         ------------------------------
-             (signature)                             (signature)
-Name:  Vince Pisano                     Name:  Ross Hamachek
-Title: V.P. - CFO                       Title: Senior Vice President
-                                               and Chief Financial Officer
-                                       4

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-                                                                       EXHIBIT D
-                                     FORM OF
-                            CONFIDENTIALITY AGREEMENT
-                  THIS  CONFIDENTIALITY   AGREEMENT  (this  "Agreement"),   made
-effective as of the ____________  day of _________,  199 , by and between Sprint
-Spectrum L.P., a Delaware limited partnership ("Sprint Spectrum"), whose address
-is 4717 Grand Avenue,  5th Floor,  Kansas City,  Missouri 64112, and , a , whose
-address is , is to assure the protection and  preservation  of the  confidential
-and/or  proprietary  nature of  information to be disclosed or made available to
-each other pursuant to or in connection with the  transactions  contemplated by,
-the Credit  Agreement dated as of October 2, 1996 (the "Credit  Agreement"),  by
-and among Spring Spectrum,  the lenders named therein and Northern Telecom Inc.,
-as agent.
-                  NOW,  THEREFORE,  in reliance upon and in consideration of the
-following  undertakings,  the parties,  for themselves,  or for any corporation,
-partnership,  association,  joint  stock  company,  limited  liability  company,
-limited  liability  partnership,  or trust  directly or indirectly  controlling,
-controlled  by or under common  control of such party,  or a more than 50% owned
-subsidiary of such party (its "Affiliates"), agree as follows:
-<PAGE>
-                  1. Scope.  For purposes of this  Agreement,  the  "Proprietary
-Information" of a party disclosing  information (the "Discloser")  means any and
-all information,  including,  without limitation, all oral, written,  graphical,
-and electronic information disclosed to the party receiving the information (the
-"Recipient")  pursuant to, or in connection with the  transactions  contemplated
-by, the Credit  Agreement,  whether  delivered to the Recipient  directly by the
-Discloser or indirectly through an agent of the Discloser or Recipient.
-                  2. Limitation.  The term  "Proprietary  Information"  does not
-include  information which: (a) has been or may in the future be published or is
-now or may in the future be otherwise in the public  domain  through no fault of
-the  Recipient;  (b) prior to disclosure  pursuant to this Agreement is properly
-within the legitimate possession of the Recipient;  (c) subsequent to disclosure
-pursuant to this  Agreement,  is  lawfully  received  from a third party  having
-rights in the  information  without  restriction  of the third  party's right to
-disseminate the  information  and without notice of any restriction  against its
-further  disclosure;  (d) is  independently  developed by the Recipient  through
-parties who have not had, either directly or indirectly,  access to or knowledge
-of such Proprietary Information; (e) is approved for disclosure by prior written
-permission  of an authorized  signatory of Discloser;  or (f) is obligated to be
-produced by law or under  order of a court of  competent  jurisdiction  or other
-similar requirement of a governmental agency, or is required to be disclosed to,
-or is requested by, the Recipient's  outside auditors or examiners in connection
-with an audit or  examination  or so long as the party  required to disclose the
-information  provides the other party with prior written  notice of any required
-disclosure pursuant to such law, order or requirement.
-                  3. Use. Each party agrees to use the  Proprietary  Information
-received  from  the  other  party  only  for the  purpose  of the  servicing  or
-protection  of its interests in respect of the Loans,  the Credit  Agreement and
-the Loan Documents (each as defined in the Credit  Agreement).  No other rights,
-and particularly licenses, trademarks,  inventions,  copyrights, patents, or any
-other  intellectual  property  rights are  implied  or granted  under the Credit
-Agreement or this  Agreement  or by the  conveying  of  Proprietary  Information
-between the parties.  Each party agrees that the other may disclose  Proprietary
-Information received by it to its Affiliates,  employees not permitted under the
-Credit Agreement and agents, subject to the terms of this Agreement.
-                  4.  Reproduction.  Proprietary Information supplied is not to
-be reproduced in any form except as required to accomplish the intent of this
-Agreement.
-                  5. Duty of Care. All Proprietary  Information must be retained
-by the  Recipient  in  accordance  with its  customary  procedures  for handling
-confidential  information of this nature and disclosed  only to the  Recipient's
-Affiliates  or  employees  (or ,  attorneys,  accountants  and agents who have a
-non-disclosure obligation at least as restrictive as this Agreement) who need to
-know such  information  for  purposes  of the  servicing  or  protection  of its
-interest in respect of the Loans,  the Credit  Agreement and the Loan  Documents
-(each as defined under the Credit  Agreement) and the transactions  contemplated
-thereby and to such third  parties as the  Discloser  has  consented to by prior
-written approval. In addition, the Recipient must provide the same care to avoid
-disclosure not permitted under the Credit  Agreement or unauthorized  use of the
-Proprietary  Information  as it provides to protect its own similar  proprietary
-information.
-                  6. Ownership.  All Proprietary  Information,  unless otherwise
-specified in writing, (a) remains the property of the Discloser, and (b) must be
-used by the Recipient only for the purpose stated  herein.  Upon  termination of
-this  Agreement,  all copies of written,  recorded,  graphical or other tangible
-Proprietary  Information must either be returned to the Discloser,  or destroyed
-(i) after the  Recipient's  need for it has  expired or (ii) upon the request of
-the  Discloser.  At the request of the  Discloser,  the Recipient will furnish a
-certificate  of an  officer of the  Recipient  certifying  that any  Proprietary
-Information not returned to Discloser has been destroyed.
-                  7.  Right to  Disclose.  Each party  warrants  that it has the
-right to disclose  all  Proprietary  Information  which it will  disclose to the
-other party pursuant to this  Agreement,  and each party agrees to indemnify and
-hold harmless the other from all claims by a third party related to the wrongful
-disclosure of such third party's information. Otherwise, neither party makes any
-representation or warranty,  express or implied, with respect to any Proprietary
-Information. Neither party is liable for indirect, incidental, consequential, or
-punitive  damages of any nature or kind  resulting from or arising in connection
-with this Agreement.
-                  8. Right to Enjoin Disclosure.  The parties acknowledge that a
-Recipient's unauthorized disclosure or use of Proprietary Information may result
-in  irreparable  harm.  Therefore,  the  parties  agree  that,  in the  event of
-violation or threatened violation of this Agreement,  without limiting any other
-rights and  remedies of each  other,  a temporary  restraining  order  and/or an
-injunction to enjoin disclosure of Proprietary Information may be sought against
-the party who has breached or threatened to breach this  Agreement and the party
-who has  breached  or  threatened  to breach this  Agreement  will not raise the
-defense of an adequate remedy at law.
-                  9.  Disclosure to Third Parties.  All media releases and pubic
-announcements  or disclosures by either party  relating to this  Agreement,  its
-subject matter or the purpose of this  Agreement are to be coordinated  with and
-consented to by the other party in writing prior to the release or announcement.
-                  10. No  Partnership or Joint Venture  Formed.  The exchange of
-any  Proprietary   Information  between  the  parties  is  not  intended  to  be
-interpreted  that the  parties  have  formed or will form a  partnership,  joint
-venture or other relationship. Any business relationship between the parties, if
-any, must be governed by separate agreement.
-                  11.  General.  (a) This  Agreement is governed  and  construed
-under  the laws of the  State  of  Missouri  and  there  are no  understandings,
-agreements or  representations,  express or implied,  not specified herein.  (b)
-Except for subsection 9.13 of the Credit  Agreement,  this Agreement  represents
-the entire understanding between the parties with respect to the confidentiality
-and  disclosure  of  Proprietary  Information,  and the terms of this  Agreement
-supersede the terms of any prior agreements or  understandings,  written or oral
-with respect thereto.  (c) This Agreement may not be amended except in a writing
-signed by the parties. (d) The provisions of this Agreement are to be considered
-as  severable,  and in the event  that any  provision  is held to be  invalid or
-unenforceable,  the parties intend that the remaining  provisions will remain in
-full force and effect.  (e) Captions in this Agreement are for ease of reference
-only and should not be considered in the  construction  of this  Agreement.  (f)
-There are no third party beneficiaries to this Agreement. (g) Failure by a party
-to  enforce  or  exercise  any  provision,  right or  option  contained  in this
-Agreement will not be construed as a present or future waiver of such provision,
-right or option.
-                  IN WITNESS  THEREOF,  the parties have executed this Agreement
-as of the effective date stated above.
-SPRINT SPECTRUM L.P.                              ______________________________
-By:                                               By:
-Name:                                             Name:
-Title:                                            Title:
-<PAGE>

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-                      EXHIBIT E: NON-DISCLOSURE AGREEMENT
-                       BETWEEN PBIS AND SOLOPOINT, INC.
-                     AND PACIFIC BELL AND SOLOPOINT, INC.
-                                      -1-
-<PAGE>
-                     CONFIDENTIAL NON-DISCLOSURE AGREEMENT
-This agreement is made on August 21, 1996 between SoloPoint, Inc., a California
-corporation ("SoloPoint") and Pacific Bell Information Services ("PBIS").
-          1.    Purpose.  Company and SoloPoint wish to explore a business
-                -------
-possibility under which each party may disclose its Confidential Information to
-the other party.
-          2.    Definition.  "Confidential Information" means any information,
-                ----------
-technical data, or know-how, including, but not limited to that which relates to
-research, products, software, services, development, inventions, processes,
-designs, drawings, formulas, engineering, marketing, finances, financial models,
-and business plans, which Confidential Information is designated in writing to
-be confidential or proprietary, or if given orally, is confirmed promptly in
-writing as having been disclosed as confidential or proprietary.  Confidential
-Information does not include information, technical data, or know-how (i) is in
-the possession of the receiving party at the time of disclosures shown by the
-receiving party's files and records immediately prior to the time of disclosure;
-or (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 (iii) is required by law to be disclosed by the receiving
-party; (iv) is independently developed by the receiving party without
-utilization of the Confidential Information.
-          3.    Non-Disclosure of Confidential Information.  Each party agrees
-                ------------------------------------------
-not to use the Confidential Information disclosed to it by the other party for
-its own use or for any purpose except to carry out discussions concerning the
-completion of any business relationship between the two. Each party will not
-disclose the Confidential Information of the other party to third parties or to
-its employees except employees who are required to have the information in order
-to carry out the contemplated business. Each party will have employees to whom
-Confidential Information of the other party is disclosed sign a Non-Disclosure
-Agreement in content substantially similar to this agreement if such persons
-have not already signed such agreements obligating them to hold the Confidential
-Information in confidence. Each party agrees that it will take all reasonable
-steps to protect the secrecy of and avoid disclosure or use of Confidential
-Information of the other party on order to prevent of unauthorized falling into
-the public domain or the possession of unauthorized persons. Each agrees to
-immediately notify the other party in writing of any misuse or misappropriation
-of such Confidential Information of the other party which may come to its
-attention.
-          4.    Return of Information.  Upon request of the disclosing party,
-                ---------------------
-the receiving party agrees to promptly return all documents furnishes to it by
-the disclosing party, together with all copies thereof in its possession.
-          5.    Term.  The term of this Agreement shall be five (5) years.
-                ----
-                                      -1-
-<PAGE>
-          6.    General Provisions.  This Agreement will be governed by the
-                ------------------
-laws of the State of California. This Agreement will be binding upon the
-successors of each party, and will be for the benefit of each party, its
-successors, and its assigns. Each party agrees that it would be difficult to
-measure the damage to such party from the breach of the other party's
-obligations hereunder, that injury to such party from any such breach would be
-impossible to calculate, and that monetary damages would therefor be an
-inadequate remedy; accordingly, each party agrees that the other party shall be
-entitled, in addition to all other remedies it might have, to injunctions or
-other appropriate orders to restrain any such breach without showing or proving
-any actual damage.
-          IN WITNESS WHEREOF, the parties have executed this Agreement as of
-the date and year written above.
-Company:
-Pacific Bell Information Services          SoloPoint, Inc.
-By:                                        By:
-   ----------------------------------         ----------------------------------
-Title:                                     Title:
-      -------------------------------            -------------------------------
-                                      -2-

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-                                    [LOGO]
-                            TeleService Resources
-                             TELESERVICE RESOURCES
-                   NON DISCLOSURE AND NONCOMPETE AGREEMENT
-This agreement is made as of the 1st of March, 1996, by and between TeleService
-Resources (TSR)(the "Providing Party") and Computer Generated Solutions, Inc.
-(CGS) (the "Receiving Party").
-In connection with discussions between TSR and CGS, it will be necessary for CGS
-to review certain documentation and information considered proprietary by TSR.
-In view of TSR's desire that such documentation and information be maintained in
-confidence, it is hereby agreed that for a period of five (5) years commencing
-on the date of this Agreement, CGS shall not disclose or otherwise make
-available to a third party any proprietary information and documentation
-received from TSR that is identified as confidential ("Confidential
-Information").  All Confidential Information transmitted hereunder shall be and
-remain the property of TSR, and all such Information and any copies thereof
-shall be promptly returned to TSR upon request or destroyed at TSR's option.
-Confidential Information shall mean any non-public, confidential proprietary
-information, services to be rendered or transactions contemplated hereby,
-including without limitation, pricing and material terms and conditions of
-services offered, intellectual property, enabling software, programming, except
-that Confidential Information does not include any information that:
-        (i)     is required by law to be disclosed
-        (ii)    was available to the Receiving Party prior to its disclosure by
-                the Providing Party
-        (iii)   was known or becomes generally available to the public or to
-                competitors of the parties hereto other than as a result of
-                disclosure by the Receiving Party
-Furthermore, in the event that TSR and CGS enter into program-specific
-Agreements whereby CGS will provide help desk call handling services to TSR,
-those services will be provided for TSR's client programs.  CGS agrees not to
-pursue independent business relations with any of TSR's clients for which it
-provides services for a minimum period of two (2) years from the end date of the
-program-specific Agreement(s)
-<PAGE>
-/s/ Steve Carter                                    Date:   3/1/96
----------------------                                     ------------
-Steve Carter, Vice President
-CMC Division
-Computer Generated Solutions, INc.
-/s/ L.L. Curtis                                     Date:  3/1/96
---------------------------------                          ------------
-Lauri Curtis, Group President
-TeleService Resources/Data Management Services

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-EX-99.(d)(2)
-Exhibit (d)(2)
-Execution Copy  June 20, 2016
- Randstad Holding NV  Diemermere 25, NL-1112 TC Diemen
-P.O. Box 12600, NL-1100 AP Amsterdam
- Attention:
-Han Kolff
-Managing Director Group Control, Strategy and M&A
- Confidentiality Agreement
-Ladies and Gentlemen:  In connection with your consideration of
-a possible transaction involving Monster Worldwide, Inc. (the “Company”) (a “Transaction”), you have requested information. In consideration of, and as a condition to, your being furnished with such information and any other
-Evaluation Material (as defined below), the Company hereby requests your agreement as set forth herein.  As used in this letter agreement (this
-“Agreement”), the term “Evaluation Material” means all information regarding the Company, its affiliates and its and their respective businesses, technology, products, prospects and plans, a Transaction (including the fact that
-the Company or its affiliates may pursue a Transaction with you and the existence and terms of this Agreement) and other information furnished to you or your Representatives (as defined below) by the Company or any of its Representatives in
-connection with the Transaction, irrespective of form or medium of communication, whether prepared by the Company, its Representatives or otherwise and whether furnished on or after the date of this Agreement, together with all tangible and
-intangible embodiments and copies thereof and together with any and all analyses, compilations, summaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in whole or
-part, such information. The term “Representatives” means, as to any person, such person’s affiliates (only to the extent that they receive Evaluation Material) and its and their respective directors, officers, employees, managing
-members, general partners, advisors, agents or representatives (including legal advisors) and, subject to paragraph 5 below, financing sources, but only to the extent that such advisors, agents, representatives or financing sources receive
-Evaluation Material.  Use and Confidentiality of Evaluation Materials
-1. You and your Representatives will (i) use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company
-involving you and (ii) keep the Evaluation Material strictly confidential and (except as required by applicable law, regulation or legal process, and only after compliance with paragraph 6 below under the heading “Compelled
-Disclosure”) will not, without the Company’s prior written consent, disclose any Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to
-know such information solely for the purpose of evaluating a possible Transaction (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation Material and directed that such
-information is to be kept confidential and not used for any purpose other than the evaluation of the possible Transaction). You will make reasonable and appropriate efforts to safeguard Evaluation Material from disclosure by you or your
-Representatives to anyone other than as permitted hereby by using, in all material respects, the same degree of care that you use to protect your own confidential, proprietary information. You agree to be responsible for any failure by your
-Representatives to comply with this Agreement (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such Representatives were original signatories hereto (other than with respect to
-paragraph 7 below under the heading “Non-Solicitation and Non-Hire of Employees”)).
-June 20, 2016
-Page 2
-2. The term “Evaluation Material” does not include any information which (i) is, as of the
-applicable time, generally known by the public (other than as a result of its disclosure directly or indirectly by you or your Representatives), (ii) was or becomes available to you on a non-confidential basis from a person (other than the
-Company or its Representatives) who, to your knowledge, is not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information to you by law, contractual obligation, fiduciary
-duty or otherwise or (iii) was or is developed or discovered independently by you without reference to the Evaluation Material. As used in this Agreement, the term “person” will be broadly interpreted to include, without limitation,
-any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material owned by the Company or its affiliates in the first instance is and will remain the property of the Company or its affiliates, as
-applicable, and that neither the Company nor any of its affiliates or Representatives has granted you any license, copyright, or similar right with respect to any of the Evaluation Material or any other information provided to you by or on behalf of
-the Company.  Non-Disclosure of Transaction Discussions
-3. Unless otherwise required by applicable law or legal process or stock exchange rule or regulation, but only after compliance with paragraph 6 below under
-the heading “Compelled Disclosure,” neither the Company nor its Representatives will, without your prior written consent, disclose to any other person that investigations, discussions or negotiations have taken or may take place concerning
-a possible Transaction, or any of the terms, conditions or other facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement and the fact that the Evaluation
-Material has been made available to you. Without limiting the foregoing, the Company hereby expressly confirms and agrees that, to its knowledge, no public disclosure with respect to any discussions or negotiations concerning a possible Transaction
-is required by the Company at the time of the execution of this Agreement by reason of securities laws or similar requirements related to general disclosure.
-4. Unless otherwise required by applicable law or legal process or stock exchange rule or regulation, but only after compliance with paragraph 6 below under
-the heading “Compelled Disclosure,” neither you nor your Representatives will, without the Company’s prior written consent, disclose to any other person either the fact that the Company or its affiliates may pursue a Transaction with
-you or anyone else, that investigations, discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or other facts with respect to any such possible Transaction, including, without
-limitation, the status thereof, the existence and terms of this Agreement and the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree that, to your knowledge, no
-public disclosure with respect to any discussions or negotiations concerning a possible Transaction is required by you at the time of the execution of this Agreement by reason of securities laws or similar requirements related to general disclosure.
- Financing Sources  5. Without limiting
-anything in this Agreement, your “Representatives” will include your potential debt financing sources in connection with a possible Transaction; provided, however, that, prior to providing Evaluation Material to any potential
-debt financing source (subject to and in accordance with paragraph 1 above), you will notify the Company of the identity of such debt financing source. Without the prior written consent of the Company, you will not, directly or indirectly, engage in
-discussions regarding equity financing of a possible Transaction with any person, or otherwise engage in any discussions regarding a possible Transaction or enter into in any agreement, arrangement or understanding (or any discussions which might
-lead to an agreement, arrangement or understanding) with any person regarding participation in a possible Transaction as a principal, co-investor or source of equity financing. For the avoidance of doubt, except as agreed in writing by the Company,
-the term “Representatives” as applied to you will not include any such potential principal, co-investor or source of equity financing. You hereby represent and warrant that neither you nor any of your Representatives is party to any
-agreement, arrangement or understanding (whether written or oral) that would restrict the ability
-June 20, 2016
-Page 3
-of any other person to provide financing (debt, equity or otherwise) to any other person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your
-Representatives will directly or indirectly restrict the ability of any other person to provide any such financing.  Compelled Disclosure
- 6. If you or your Representatives are requested or required to disclose any Evaluation Material or any of the information referred to in paragraph
-4 above under the heading “Non-Disclosure of Transaction Discussions” (or if the Company or its Representatives is requested or required to disclose that you are in discussions or negotiations with the Company concerning a possible
-Transaction) pursuant to any law or regulation or stock exchange rule or regulation or the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory body or
-pursuant to a civil investigative demand or similar judicial process or otherwise, the applicable party will, to the extent not prohibited by applicable law or regulation, (i) promptly notify the other party of the existence, terms and
-circumstances surrounding such request or requirement, (ii) consult with the other party on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such information is
-required, disclose only that portion of the information which it is legally required to disclose and give the other party notice of the information to be so disclosed as far in advance of disclosure as may be reasonably practicable and
-(iv) except in the case of public disclosure with respect to any discussions or negotiations concerning a possible Transaction which is required by reason of securities laws or similar requirements related to general disclosure, if so requested
-by the other party, exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such information (and, in any event, if applicable, such party will reasonably
-cooperate with the other party to obtain such a protective order or other assurance), such efforts to obtain a protective order or confidential treatment to be at the other (requesting) party’s expense.
-Non-Solicitation and Non-Hire of Employees  7.
-Until the date that is eighteen (18) months from the date of this Agreement, you will not, without the Company’s prior written consent, directly or indirectly solicit for purposes of employment, offer to hire or engage as a consultant,
-entice away or offer to enter into any contract with, or hire or engage as a consultant or enter into any contract with, during the period of employment or the 90-day period following such employment, any senior or key employee of the Company or its
-controlled affiliates who becomes known to you in connection with your evaluation of the Transaction; provided, however, that this paragraph will not prohibit you or any of your Representatives from engaging in any general advertising
-or general solicitation not targeted to any employees or former employees of the Company or its controlled affiliates, or from hiring any employees or former employees of the Company who respond to such solicitation. Finally, this paragraph 7 will
-not apply to any solicitation in the ordinary course of business initiated by one of your employees who has no knowledge of this Agreement or a potential Transaction, so long as such individual is acting without information or encouragement from any
-of your Representatives who does possess such knowledge.  Standstill
-8. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities or
-contract rights the terms or value of which are dependent on securities of the Company. For a period of fifteen (15) months from the date of this Agreement (the “Assessment Period”), you and your Representatives (acting on behalf of
-you or your subsidiaries) will not, directly or indirectly, and you will cause any person or entity controlled by you or acting in concert with you not to, without the prior written consent of the Board of Directors of the Company, (i) in any
-manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any securities or property of the Company or any of its subsidiaries, or any securities or contract rights the terms or value of which are dependent on
-securities of the Company, (ii) propose to enter into, directly or indirectly, any merger, consolidation, tender offer, exchange
-June 20, 2016
-Page 4
-offer, recapitalization, restructuring, liquidation, business combination, partnership, joint venture or other similar transaction involving the Company or any of its subsidiaries or any of the
-assets of the Company constituting a material portion of the consolidated assets of the Company and its subsidiaries, (iii) make, or in any way participate in 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 (including, for the avoidance of doubt, indirectly by means of communication with the press or media) with respect to the voting of
-any voting securities of the Company, (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the
-Company, (v) negotiate, have any discussions or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing, or,
-make any investment in any other person that, to your knowledge at the time of your investment (after reasonable inquiry), intended to or is considering and actually does engage, or offers or proposes to engage, in any of the foregoing (it being
-understood that, without limiting the foregoing, you will not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company, except as provided in paragraph 17 below), (vi) otherwise act, alone or in
-concert with others, to seek to control or influence (including, for the avoidance of doubt, indirectly by means of communication with the press or media) the management, Board of Directors or policies of the Company or otherwise seek the removal of
-any director or the election or appointment of any director, (vii) disclose, or direct any third-party to disclose, any intention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons
-in connection with any of the foregoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not to (i) request the Company (or Company Representatives),
-directly or indirectly, to amend or waive any provision of this paragraph (including this sentence), (ii) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or the
-possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or (iii) communicate with the Company’s stockholders regarding the subject matter of this Agreement.
-Notwithstanding the foregoing provisions of this paragraph 8, you will be permitted to submit to the Company one or more offers, proposals or indications of interest related to a transaction between the parties that would otherwise violate the
-foregoing provisions of this paragraph 8, provided that each such submission is made to the Board of Directors of the Company or the chairperson of the Board of Directors of the Company, in each case, on a confidential basis and in a manner that
-would not reasonably be expected to require the Company to make public disclosure of such offer, proposal or indication of interest.  Prohibition on
-Trading  9. In addition, each party hereby acknowledges that it is aware, and that it will advise its respective Representatives who receive any
-Evaluation Material or are aware of the discussions or negotiations regarding a possible Transaction, that the United States and Dutch securities laws prohibit any person who has received from an issuer material, non-public information from
-purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person (including,
-without limitation, any of either party’s Representatives) is likely to purchase or sell such securities.  Return or Destruction of Documents
- 10. If you determine that you do not wish to proceed with a Transaction or your evaluation hereof, you will promptly advise the Company of that
-decision. In that case, or if at any time the Company so requests in writing, you will promptly (and in any event within 10 days) either, at your option, (i) deliver to the Company all of the Evaluation Material (including all copies,
-reproductions, summaries, analyses or extracts thereof or based thereon) in your possession or in the possession of any of your Representatives or (ii) destroy or cause to be destroyed all such Evaluation Material in your possession or in the
-possession of any of your Representatives (such destruction to be acknowledged by you in writing to the Company). Notwithstanding such delivery or
-June 20, 2016
-Page 5
-destruction of the Evaluation Material, you agree that you and your Representatives will continue to be bound by your obligations under this Agreement. Notwithstanding the foregoing, (i) you
-and your Representatives will not be required to delete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up procedures (it being agreed that you and your Representatives
-will not access such archived computer files containing any such Evaluation Material after such delivery or destruction is otherwise required) and (ii) you and/or your Representatives may retain one copy of the Evaluation Material (and may only
-access any such Evaluation Material) to the extent and for so long as such retention and access by you or such Representative, as applicable, is required by law or regulation; provided, however, that in the case of each of clauses
-(i) and (ii) of this sentence, notwithstanding any other provision of this Agreement, you and your applicable Representatives will continue to be bound by the terms of this Agreement as if it were in full force and effect with respect to
-any such Evaluation Material for so long as you or your applicable Representatives retain any such Evaluation Material.  No Unauthorized Contact
- 11. Unless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for
-additional information or Evaluation Material, (iii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures relating to a possible Transaction, will be submitted or directed to only the
-Chief Executive Officer of the Company, the Board of Directors of the Company, the chairperson of the Board of Directors of the Company or those officers of the Company designated to you in writing by the Company. You further agree that, except as
-permitted by this Agreement, without the prior written consent of the Company, you and your Representatives will not contact any other officers, directors, employees, stockholders, customers or suppliers of the Company or its subsidiaries in
-connection with a possible Transaction, and, without limiting anything in this Agreement, will not otherwise disclose to any such parties the fact that the Company or its affiliates may pursue a Transaction with you or other parties or that
-discussions or negotiations have taken or may take place concerning a possible Transaction.  Maintaining Privileges
-12. 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, you understand and agree that you and the Company have a commonality of interest with respect to such matters and it is the desire, intention and mutual
-understanding of each party to this Agreement that the sharing of such material is not intended to, and will 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 to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to such protection
-under these privileges, this Agreement and the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.
-Export Restrictions  13. You acknowledge that
-certain of the Evaluation Material may be subject to export restrictions under U.S. law. You will not, and will cause your Representatives not to, without the express written permission of the Company, transmit, directly or indirectly, any
-Evaluation Material that is subject to such export restrictions to any person or country outside the United States or otherwise in violation of applicable law; provided, however, that you will not be deemed to be in violation of this
-provision in connection with any Evaluation Material provided directly by the Company or its Representatives to your employees who have a Randstad email address other than one ending in “randstadusa.com”. The Company will advise you in
-writing as to the applicability of this Section 13 to any particular piece of Evaluation Material at or before the time such material is provided to you.
-June 20, 2016
-Page 6
-No Obligation, Representation or Warranty
-14. This Agreement defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it may be disclosed
-or made available but does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other information to you. Under no circumstances will the Company or any of its Representatives be
-obligated to disclose or make available any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines not to disclose. Except for any express representations and warranties
-set forth in a definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement, you understand and acknowledge that none of the Company or any of their respective Representatives is making
-any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided to you or your Representatives by or on behalf of the Company, and none of the Company or any of
-their respective Representatives will have any liability to you or any other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material or any errors therein or omissions therefrom, except
-as may otherwise be set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.
-15. You acknowledge and agree that neither you nor the Company, nor any of either party’s Representatives, will be under any legal obligation of any kind
-whatsoever with respect to any Transaction by virtue of (i) this Agreement or (ii) any written or oral expression or communication with respect to any Transaction by any of the Company’s Representatives except, in the case of this
-Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (a) the Company will be free to conduct the process for a Transaction as the Company in its sole discretion will determine (including, without
-limitation, negotiating with any other person and entering into a definitive agreement without prior notice to you or any other person), (b) none of you, the Company, or any of your or their respective Representatives will have any legal,
-fiduciary or other duty to the other party or its Representatives with respect to any such process, and none of you, the Company, or each party’s respective Representatives are relying on any express or implied representation concerning the
-manner in which such process will proceed, (c) any of the procedures relating to a Transaction may be changed at any time without notice to you or any other person, (d) each party will have the right to reject or accept any potential
-proposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion and (e) neither party will have any claim whatsoever against the other or any of their respective Representatives arising out of or relating to a
-Transaction, except as may otherwise be set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.
-Term  16. Except as otherwise provided herein, the
-obligations of the parties under this Agreement will terminate eighteen (18) months from the date hereof, provided that such termination will not relieve any party from its responsibilities in respect of any breach of this Agreement prior to
-such termination.  Acting as Principal  17.
-You represent and warrant that you (i) are acting as a principal in any possible Transaction, (ii) are not represented by any broker or similar party other than Wells Fargo Securities, LLC, which company is acting as your financial advisor
-in connection with a possible Transaction, (iii) are not acting as a broker for or Representative of any other person in connection with the Transaction, and (iv) are considering the Transaction only for your own account. Except with the
-prior written consent of the Company, you agree that (a) you will not act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (b) neither you nor any of your Representatives (acting on behalf of you or
-your subsidiaries) will enter into any discussions,
-June 20, 2016
-Page 7
-negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding the Transaction, other than the Company and its Representatives, and your
-Representatives (to the extent permitted hereunder).  Legal Remedy
-18. You acknowledge that money damages and remedies at law may be inadequate to protect the Company against any actual or threatened breach of or failure to
-comply with this Agreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you may agree to the seeking of specific performance, injunctive relief and other equitable remedies
-in the Company’s favor, and you further agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy.
-Governing Law  19. The validity and interpretation
-of this Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the
-State of New York located in New York, New York or the United States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the transactions contemplated
-hereby (each a “Proceeding”) and agree that service of any process, summons, notice or document delivered by hand or sent by U.S. registered mail to your address set forth above will be effective service of process for any action, suit or
-proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined in any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have
-acquired, or hereafter may acquire, from jurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by jury in any Proceeding and (v) agree not to
-commence any Proceeding other than in such court, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient forum.
-No Waiver  20. No failure or delay by the Company
-in exercising any right, power or privilege under this Agreement will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege.
-Successors and Assigns  21. This Agreement will be
-binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this Agreement or any part hereof without the prior written consent of the Company, and any purported assignment without such
-consent will be null and void.  Severability
-22. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or
-unenforceable, (i) the remaining terms and provision hereof will be unimpaired and will remain in full force and effect to the fullest extent permitted by applicable law and (ii) the invalid or unenforceable term or provision will be
-replaced by a term or provision that is valid and enforceable and that comes closest to expressing the parties’ intention with respect to such invalid or unenforceable term or provision.
-June 20, 2016
-Page 8
-Entire Agreement
-23. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements and
-understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its provisions be waived except by written amendment executed by the parties. An amendment or modification or
-waiver will only be effective if (i) it is in writing and signed by the Company and you, (ii) it specifically refers to this Agreement and (iii) it specifically states that the Company and/or you, as the case may be, is amending,
-modifying or waiving its rights hereunder. Any such amendment, modification or waiver will be effective only in the specific instance and for the purpose for which it was given.
-Data Site  24. The terms of this Agreement shall
-supersede any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar repository of Evaluation Material to which you or any of your Representatives may be granted access in connection with
-the evaluation, negotiation or consummation of the 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 your confidentiality obligations with respect to Evaluation Material are exclusively governed by this Agreement and may not be enlarged except by a written agreement
-that is hereafter executed by each of the parties hereto.  Counterparts
-25. For the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which will be an
-original instrument and all of which taken together will constitute one and the same Agreement. Delivery of a signed counterpart of this Agreement by e-mail or facsimile transmission will constitute valid and sufficient delivery thereof.
-This Agreement is being delivered to you in duplicate. Please execute and return one copy of this Agreement, which will constitute your agreement with respect
-to the subject matter of this Agreement.
-Very truly yours,
-MONSTER WORLDWIDE, INC.
-By:
-/s/ Timothy T. Yates
-Name:
-Timothy T. Yates
-Title:
-Chief Executive Officer and Chief Financial Officer
-   ACCEPTED AND AGREED TO
-as of the first date written above
-RANDSTAD HOLDING NV
-By:
-/s/ Han Kolff
-Name:
-Han Kolff
-Title:
-Managing Director Group Control, Strategy and M&A

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-NON-COMPETITION, REFERRAL AND NON-DISCLOSURE AGREEMENT
-     NON-COMPETITION, REFERRAL AND NON-DISCLOSURE AGREEMENT (the "Agreement"),
-dated as of May 10 , 1999, by and between CompuCom Systems, Inc., a Delaware
-corporation ("CompuCom"), and ENTEX Information Services, Inc., a Delaware
-corporation ("Seller").
-                                    RECITALS
-     WHEREAS, CompuCom and Seller have entered into an Asset Purchase Agreement
-dated as of May 10 , 1999 (the "Asset Purchase Agreement");
-     WHEREAS, the execution of this Agreement is a condition to CompuCom
-acquiring, and Seller disposing of, the Purchased Assets (as defined in the
-Asset Purchase Agreement) in connection with the Asset Purchase Agreement;
-     NOW, THEREFORE, in consideration of the mutual covenants and agreements set
-forth herein, CompuCom and Seller hereby agree as follows:
-                                    ARTICLE I
-                                   DEFINITIONS
-     1.1 For purposes of this Agreement, the following terms have the following
-meanings:
-          (1) "Configuration" means the preparation of a computer and related
-     hardware and integration of components into a computer system; provided
-     that the term "Configuration" shall not include installation of a computer
-     or related hardware at a customer site.
-          (2) "Non-Competition Period" means the period commencing on May 12,
-     1999 and ending on May 11, 2000.
-          (3) "Product" means any computer or related hardware and peripherals
-     (including hubs, switches and routers or networking hardware) or software
-     products (including networking software products) which CompuCom has the
-     ability to sell.
-          (4) "Product Business" means the acceptance and fulfillment of
-     customer orders for Products, including the manufacturing, channel
-     assembly, co-location or centralized image loading and Configuration of
-     Products; provided that the term "Product Business" shall not include
-     on-site Configuration of computer or related
-<PAGE>
-     hardware or software products made subsequent to the initial image
-     load/configuration.
-          (5) "Outsourcing and Professional Services" means (a) consulting,
-     system migrations, project management, other services typically referred to
-     as "high-end" services, and (b) outsourcing contracts having a term of more
-     than one year which require pricing be done on a per seat basis. Agreements
-     that consist primarily of lower-end services, including, but not limited
-     to, break/fix, IMAC, warranty and low-end staff augmentation, other than
-     agreements priced on a per-seat basis, are not Outsourcing and Professional
-     Services agreements.
-          (6) "Service Accounts" means the customer accounts of Seller listed on
-     Exhibits B and C hereto.
-          (7) "Services" means all IT services offered by Seller, including, but
-     not limited to, all outsourcing, professional services, break/fix, staff
-     augmentation and consulting services; provided that the term "Services"
-     shall not include (i) on-site Configuration of Products by CompuCom or (ii)
-     the sale (but not the performance) by CompuCom of extended warranty
-     contracts at time of initial sale of Products to customers.
-          (8) "Subsidiary," with respect to any person, means (i) any
-     corporation of which the outstanding capital stock having at least a
-     majority of the votes entitled to be cast in the election of directors
-     under ordinary circumstances shall at the time be owned, directly or
-     indirectly, by such person or (ii) any other person of which at least a
-     majority of the voting interest under ordinary circumstances is at the
-     time, directly or indirectly, owned by such person.
-     Capitalized terms used in this Agreement and not otherwise defined shall
-have the meanings ascribed thereto in the Asset Purchase Agreement.
-                                   ARTICLE II
-                             AGREEMENT TO COOPERATE
-     Subject to the limitations set forth in Article III, Seller and CompuCom
-agree that with respect to each account listed on Exhibit A hereto, that until
-the earlier of (a) May 11, 2000 or (b) the termination of the existing contract
-between Seller and such account (i) each party will cooperate with the other in
-delivering Services and Products to such account in substantially the same
-manner in which such Services and Products were delivered to such account prior
-to Closing and (ii) each party's representative will be permitted to call on
-such account.
-<PAGE>
-                                   ARTICLE III
-                            AGREEMENT NOT TO COMPETE
-     3.1 Seller's Agreement. (a) Seller agrees that during the Non-Competition
-Period Seller will not, and will not permit any of its Subsidiaries to:
-          (i) engage in the Product Business;
-          (ii) encourage any Service Account to specify a party other than
-     CompuCom to provide Products and image load/configurations to such Service
-     Account; or
-          (iii) solicit, entice or induce any employee of CompuCom or any
-     Subsidiary of CompuCom to terminate his or her employment with CompuCom or
-     any Subsidiary of CompuCom or hire any person who was or is at any time
-     from the date of execution of the Asset Purchase Agreement to the end of
-     the Non-Competition Period an employee of CompuCom or any Subsidiary of
-     CompuCom.
-     (b) Seller agrees that during the Non-Competition Period Seller will, and
-will cause its Subsidiaries to use commercially reasonable efforts to cause
-future Service customers to whom Seller provides Outsourcing and Professional
-Services and existing Service customers of Seller to whom Seller is able to
-expand its Services, to procure Products and image load/configuration from
-CompuCom in accordance with the provisions of Article IV, provided that CompuCom
-is not competing with Seller to provide future or expanded Services to such
-customers.
-     Notwithstanding the foregoing, Seller shall be permitted to preserve its
-ability to resell Products to the extent required by existing customer
-agreements if (i) the customer refuses to approve of CompuCom providing such
-Products after Seller uses commercially reasonable efforts to obtain such
-approval, (ii) CompuCom rejects the customer order for such Products pursuant to
-Article IV (provided that CompuCom shall comply with the requirements of the
-Asset Purchase Agreement with respect to such agreements), or (iii) CompuCom
-fails to meet the requirements of the customer agreement, including but not
-limited to price, payment terms, return privileges and service level agreements
-("SLA's) (subject to applicable cure periods). In addition, Seller shall be
-permitted (A) to arrange for the procurement of computers or related hardware
-and software products as agent for customers in connection with future
-Outsourcing and Professional Services engagements, subject to Seller's
-obligations under Section 3.1(b) and the conditions provided for in the
-immediately preceeding sentence (B) to refer orders for Products for delivery
-outside the United States to comply with Seller's obligations under Seller's
-international alliance agreements and (C) to perform initial on-site image
-load/configuration and augmentation in a manner consistent with Seller's current
-business practices, provided that Seller agrees that during the Non-Competition
-Period, it will not actively encourage any Services customer to move its initial
-image load/configuration business from CompuCom's configuration facilities to
-the customer`s site.
-<PAGE>
-     3.2 CompuCom's Agreement. (a) CompuCom agrees that during the
-Non-Competition Period CompuCom will not, and will not permit any of its
-Subsidiaries to:
-          (i) provide any Services to any account listed on Exhibit B hereto;
-          (ii) provide any Services to any account listed on Exhibit C hereto
-     except to the extent provided for in such Exhibit; or
-          (iii) except as contemplated by the Asset Purchase Agreement, solicit,
-     entice or induce any employee of Seller or any Subsidiary of Seller to
-     terminate his or her employment with Seller or any Subsidiary of Seller or
-     hire any person who was or is at any time from the date of execution of the
-     Asset Purchase Agreement to the end of the Non-Competition Period an
-     employee of Seller or any Subsidiary of Seller.
-          Notwithstanding the foregoing, CompuCom shall be permitted to provide
-     Services under any "request for proposal", bid, contract or statement of
-     work submitted by CompuCom to the applicable potential customer prior to
-     May 12, 1999 . In the event of a dispute between CompuCom and Seller as to
-     the matters covered by the immediately preceeding sentence, CompuCom shall
-     furnish, in response to the reasonable request of Seller, evidence and
-     shall have the burden of proving, that the applicable "request for
-     proposal", bid, contract or statement of work was submitted by CompuCom to
-     the customer prior to May 12, 1999.
-     (b) CompuCom agrees that it will refer to Seller the performance of
-extended warranty service (other than manufacturers' warranties) or warranty
-upgrades sold by CompuCom to any Service Accounts, provided that Seller has the
-ability to perform such extended warranty service or warranty upgrades except
-that CompuCom may continue to perform extended warranty services and warranty
-upgrades in accordance with the provisions of Exhibit C. The parties agree to
-negotiate in good faith the terms, conditions and amount of payment Seller will
-receive for performing such warranty service or warranty upgrades.
-                                   ARTICLE IV
-                          Acceptance of Product Orders
-     CompuCom agrees that during the Non-Competition Period, it will accept
-orders for Products submitted to CompuCom by Seller pursuant to Section 3.1(b)
-under the following conditions: (i) CompuCom has the ability to offer such
-Product for sale; (ii) the purchase price required by the customer order for the
-Product is reasonably acceptable to CompuCom; (iii) such Product offered by
-CompuCom meets the customer's specifications, including, but not limited to,
-configuration specifications; and (iv) the requirements of the customer with
-respect to such Product, including but not limited to delivery, payment terms
-and return privileges are reasonably acceptable to CompuCom. CompuCom agrees to
-notify
-<PAGE>
-Seller of CompuCom's rejection of such orders for Product within a mutually
-agreed upon time that is reasonable under the time constraints required by the
-customer order or contract.
-                                    ARTICLE V
-                                 NON-DISCLOSURE
-     5.1 Seller's Non-Disclosure Obligations. Seller covenants and agrees that,
-unless otherwise required by law, from and after the Closing:
-          (a) Seller shall cooperate with CompuCom at CompuCom's expense to
-     protect and safeguard all of CompuCom's Confidential Information; and
-          (b) Seller shall not, directly or indirectly, use, sell, license,
-     publish, disclose, or otherwise transfer or make available to others any of
-     CompuCom's Confidential Information.
-     As used in this Agreement, the terms "CompuCom's Confidential Information"
-means proprietary or confidential information concerning the Business including,
-without limitation, information regarding prices charged for Products, the
-assets, liabilities, and financial condition of the Business, names and
-identities of customers and analyses of the amount and types of Products
-purchased by each such customer.
-     Notwithstanding the foregoing, Seller shall be permitted to disclose
-historical financial information, including financial information relating to
-the Business, as may be required by customers, vendors, lenders or other third
-parties, provided that such third parties shall agree to preserve the
-confidentiality of such information.
-     5.2 CompuCom's Non-Disclosure Obligations. CompuCom covenants and agrees
-that unless otherwise required by law, from and after the Closing:
-          (a) CompuCom shall cooperate with Seller at Seller's expense to
-     protect and safeguard all of Seller's Confidential Information;
-          (b) CompuCom shall not, directly or indirectly, use, sell, license,
-     publish, disclose or otherwise transfer or make available to others any of
-     Seller's Confidential Information; and
-          (c) CompuCom shall not solicit or knowingly utilize any of Seller's
-     Confidential Information regarding Seller's Services business from any
-     former employee of Seller.
-As used in this Agreement, the terms "Seller's Confidential Information" means
-proprietary or confidential information and business secrets of Seller
-pertaining to its Services Business in-
-<PAGE>
-cluding, without limitation, information regarding prices charged for Services,
-copies of existing Services contracts to which Seller is a party (other than any
-such contracts provided to CompuCom pursuant to the provisions of the Asset
-Purchase Agreement) and analyses of the amount and types of Services purchased
-by customers.
-                                   ARTICLE VI
-                                  MISCELLANEOUS
-     6.1 Notices, Etc. All notices, requests, demands or other communications
-required by or otherwise with respect to this Agreement shall be in writing and
-shall be deemed to have been duly given to any party when delivered personally
-(by courier service or otherwise), when delivered by facsimile and confirmed by
-return facsimile, or five business days after being mailed by first-class mail,
-postage prepaid in each case to the applicable addresses set forth below:
-                  If to Seller, to:
-                           ENTEX Information Services, Inc.
-                           Six International Drive
-                           Rye Brook, N.Y. 10573
-                           Facsimile No.:  (914) 935-3720
-                           Attention:     Lynne A. Burgess, Esq.,
-                                          Senior Vice President and
-                                          General Counsel
-                  with a copy (which shall not constitute notice to Seller) to:
-                           Cahill Gordon & Reindel
-                           80 Pine Street
-                           New York, NY 10005
-                           Facsimile No.: (212) 269-5420
-                           Attention:     Gerald S. Tanenbaum, Esq.
-                  If to CompuCom, to:
-                           CompuCom Systems, Inc.
-                           7171 Forest Lane
-                           Dallas, Texas 75230
-                           Facsimile No.: (972) 856-5395
-                           Attention:     Ms. Lazane Smith,
-                                          Senior Vice President
-                                          and Chief Financial Officer
-<PAGE>
-               with a copy (which shall not constitute notice to CompuCom) to:
-                           Strasburger & Price, L.L.P.
-                           901 Main Street, Suite 4300
-                           Dallas, Texas  75202
-                           Facsimile No.: (214) 651-4330
-                           Attention:     Frederick J. Fowler, Esq.
-or to such other address as such party shall have designated by notice so given
-to each other party.
-     6.2 Amendments, Waivers, Termination Etc. This Agreement may not be
-amended, changed, supplemented, waived or otherwise modified or terminated
-except by an instrument in writing signed by each of the parties hereto.
-     6.3 Successors and Assigns. This Agreement shall be binding upon and shall
-inure to the benefit of and be enforceable by the parties and their respective
-successors and assigns, including without limitation by merger or otherwise.
-This Agreement shall not be assignable.
-     6.4 Entire Agreement. This Agreement and the Asset Purchase Agreement
-embody the entire agreement and understanding among the parties relating to the
-subject matter hereof and supersede all prior agreements and understandings
-relating to such subject matter. There are no covenants by the parties hereto
-relating to such subject matter other than those expressly set forth in this
-Agreement and the Asset Purchase Agreement.
-     6.5 Specific Performance. The parties acknowledge that money damages are
-not an adequate remedy for violations of this Agreement and that any party may,
-in its sole discretion, apply to a court of competent jurisdiction for specific
-performance or injunctive or such other relief as such court may deem just and
-proper in order to enforce this Agreement or prevent any violation hereof and,
-to the extent permitted by applicable law, each party waives any objection to
-the imposition of such relief.
-     6.6 Remedies Cumulative. All rights, powers and remedies provided for under
-this Agreement or otherwise available in respect hereof at law or in equity
-shall be cumulative and not alternative, and the exercise or beginning of the
-exercise of any thereof by any party shall not preclude the simultaneous or
-later exercise of any other such right, power or remedy by such party.
-     6.7 No Waiver. The failure of any party hereto to exercise any right, power
-or remedy provided under this Agreement or otherwise available in respect hereof
-at law or inequity, or to insist upon compliance by any other party hereto with
-its obligations hereunder, and any custom or practice of the parties at variance
-with the terms hereof, shall not constitute
-                                      -57-
-<PAGE>
-a waiver by such party of its right to exercise any such or other right, power
-or remedy or to demand such compliance.
-     6.8 Severability. Each party agrees that, should any court or other
-competent authority hold any provision of this Agreement or part hereof to be
-null, void or unenforceable, or order any party to take any action inconsistent
-herewith or not to take an action consistent herewith or required hereby, the
-validity, legality and enforceability of the remaining provisions and
-obligations contained or set forth herein shall not in any way be affected or
-impaired thereby. Upon any such holding that any provision of this Agreement is
-null, void or unenforceable, the parties will 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 transactions contemplated
-by this Agreement are consummated to the extent possible.
-     6.9 GOVERNING LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND
-THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN
-ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE
-AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS
-THEREOF RELATING TO CONFLICTS OF LAW.
-     6.10 Name, Captions. The name assigned to this Agreement and the section
-captions used herein are for convenience of reference only and shall not affect
-the interpretation or construction hereof.
-     6.11 Counterparts. This Agreement may be executed in any number of
-counterparts, each of which shall be deemed to be an original, but all of which
-together shall constitute one instrument. Each counterpart may consist of a
-number of copies each signed by less than all, but together signed by all, the
-parties hereto.
-     6.12 Referral Fees. To the extent that the parties agree that the payment
-of referral fees will further their mutual business interests or is required in
-order to compensate either party for material services rendered for the benefit
-of the other, the parties agree to negotiate the terms and conditions of the
-payment of such referral fees in good faith.
-<PAGE>
-     IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
-date first above written.
-                        COMPUCOM SYSTEMS, INC.
-                        By:    /s/ M. Lazane Smith
-                               ----------------------------------------
-                               Name:      Lazane M. Smith
-                               Title:     Senior Vice President and
-                                          Chief Financial Officer
-                        ENTEX INFORMATION SERVICES, INC.
-                         By:    /s/ Kenneth A. Ghazey
-                                ---------------------------------------
-                                Name:      Kenneth A. Ghazey
-                                Title:     President

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@@ -1,157 +0,0 @@
-NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
-                  --------------------------------------------
-     THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made
-and  entered  into as of the 1st  day of  April,  2003,  by and  between  BELCAN
-CORPORATION, an Ohio corporation ("Belcan"), and ARC COMMUNICATIONS, INC., a New
-Jersey  corporation  ("ARC").  All  initially  capitalized  terms not  otherwise
-defined  shall have the  meanings  ascribed  to them in the  Purchase  Agreement
-(later defined).
-     WHEREAS,  the  parties  hereto  are  parties  to a certain  Stock  Purchase
-Agreement  (the  "Purchase  Agreement")  dated as of April 1, 2003,  pursuant to
-which ARC agreed to sell to Belcan the Purchased Shares in the Company;
-     WHEREAS,  ARC will receive valuable  consideration from Belcan for the sale
-of the  Purchased  Shares  in the  Company  and will  also  receive  the Note as
-additional consideration for its covenants contained herein;
-     WHEREAS,  ARC has had access to all  material  and  otherwise  confidential
-information relating to the Company;
-     WHEREAS,  the  Company is  engaged in the  business  of  providing  on-line
-training to professionals in the medical arena (the "Business");
-     WHEREAS,  Belcan would not be willing to enter into the Purchase  Agreement
-without the agreement of ARC to execute this  Non-Competition and Non-Disclosure
-Agreement,  and Belcan  has  expressly  conditioned  its  obligations  under the
-Purchase   Agreement  on  the  entering   into  of  this   Non-Competition   and
-Non-Disclosure Agreement.
-     NOW, THEREFORE, in pursuance of the above and in consideration of the terms
-and conditions contained herein and for other good and valuable  considerations,
-the receipt and sufficiency of which are hereby acknowledged,  the parties agree
-as follows:
-     1.  Non-Disclosure  of the  Company's  Confidential  Information  and Trade
-         -----------------------------------------------------------------------
-Secrets.  ARC has learned  trade  secrets and  confidential  information  of the
--------
-Company,  including, but not limited to, the software of the Company, marketing,
-price information, customer lists, identities of customer contact persons, lists
-of prospective customers,  market research,  sales systems,  marketing programs,
-budgets,  pricing  strategy,  identity and  requirements  of national  accounts,
-methods of operating, other trade secrets and confidential information regarding
-customers and  employees of the Company or its  customers and other  information
-about the  Company's  Business that is not readily known to the public and gives
-the Company an opportunity to obtain an advantage  over  competitors  who do not
-know  such  information  (collectively,  the  "Confidential  Information").  ARC
-acknowledges  that the Company has invested  substantial sums in the development
-of its  Confidential  Information.  ARC covenants and agrees that they will not,
-directly  or  indirectly,  disclose or  communicate  to any person or entity any
-Confidential  Information  of the  Company;  except (i) in  connection  with the
-enforcement of ARC's rights under the Purchase  Agreement,  or (ii) as otherwise
-<PAGE>
-                                      -2-
-required by law. This covenant has no geographical or territorial restriction or
-limitation and applies no matter where ARC may be located in the future.
-     2. Non-Solicitation  Covenant. For a period of five (5) years from the date
-        --------------------------
-hereof,  ARC,  acting either  directly or indirectly,  through any other person,
-firm,  or  corporation,  covenants  and  agrees  not to (i) induce or attempt to
-induce or influence any employee of the Company to terminate employment with the
-Company when the Company desires to retain that person's  services;  (ii) in any
-way interfere with the relationship  between the Company and any employee of the
-Company;  or (iii)  employ,  or  otherwise  engage as an  employee,  independent
-contractor or otherwise, any employee of the Company.
-     3.  Non-Competition.  For a period of five (5) years from the date  hereof,
-         ---------------
-ARC shall not, acting directly or indirectly, (i) have any ownership interest in
-any competing  business,  (ii) call on, solicit or have business  communications
-with  respect to a competing  business  with any of the  Company's  customers or
-prospective  customers for the purpose of obtaining competing business from such
-customer or prospective  customer other than for the benefit of the Company,  or
-(iii) participate in the formation or start-up of a competing business.  As used
-in this Agreement,  the term "competing  business" means any business  competing
-with the Company for the Company's  Business  anywhere in the United States.  As
-used in this Agreement,  the term  "customer"  means any customer of the Company
-whose identity ARC learned  through ARC's  ownership of the Company or with whom
-ARC had business contact during the twelve (12) months  immediately prior to the
-date hereof.
-     4. Return of Confidential Information.  Upon the Closing (as defined in the
-        -----------------------------------
-Purchase Agreement) of the transactions  contemplated by the Purchase Agreement,
-ARC agrees that all copies and originals of all  documents  and other  materials
-containing or referring to the Company's  Confidential  Information as may be in
-ARC's possession,  or over which ARC may have control, shall be delivered by ARC
-to Belcan immediately, with no request being required.
-     5. Injunctive  Relief.  ARC acknowledges and agrees that a breach of any of
-        ------------------
-the  covenants set forth in this  Agreement  will cause  irreparable  injury and
-damage to Belcan for which Belcan would have no adequate  remedy at law, and ARC
-further agrees that in the event of said breach, Belcan, without having to prove
-damages,  shall be entitled to an immediate  restraining order and injunction to
-prevent such  violation or continued  violation,  and to all costs and expenses,
-including Belcan's  reasonable  attorney fees, in addition to any other remedies
-to which Belcan may be entitled at law or equity.
-     6. Severability.  If any provision of this Agreement is held to be illegal,
-        -------------
-invalid, or unenforceable in any respect, Belcan and ARC agree that such term or
-provision  shall be deemed to be modified to the extent  necessary to permit its
-enforcement to the maximum extent permitted by applicable law.
-     7.  Assignment.  This  Agreement  shall be  binding  upon and  inure to the
-         -----------
-benefit of Belcan, its successors and assigns.
-     8. Governing Law, Forum  Selection,  and Consent to Personal  Jurisdiction.
-        ------------------------------------------------------------------------
-This Agreement shall be governed by the laws of the State of Ohio.
-<PAGE>
-                                      -3-
-         The remainder of this page intentionally left blank.
-<PAGE>
-                                      -4-
-     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
-and year first above written.
-WITNESSES:                                           BELCAN CORPORATION
-                                                   BY: /s/Richard J. Lajoie, Jr.
-                                                   -----------------------------
-                                                       Richard J. Lajoie, Jr.
-                                                       Vice President
-                                                   ARC COMMUNICATIONS, INC.
-                                                   BY: /s/ Michael Rubel
-                                                   -----------------------------
-                                                       Michael Rubel
-                                                       Chief Operating Officer

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-Exhibit (d)(10)
-NON-DISCLOSURE AGREEMENT
-THIS NON-DISCLOSURE AGREEMENT (“Agreement”) between Universal Hospital Services, Inc. (“UHS”) and Emergent Group, Inc. (“Company”), is effective October 26, 2010.
-Whereas, UHS and Company intend to engage in confidential discussions for the purpose of evaluating a potential business transaction between UHS and Company (“Business Transaction”), and as part of the Business Transaction, each party anticipates that it will disclose to the other party certain information that its deems confidential and/or proprietary.
-Now, therefore, to assure the confidentiality of the parties’ confidential information and to prevent the unauthorized use or disclosure of this information, UHS and Company agree as follows:
-1.                                      Confidential Information Defined. The term “Confidential Information” means all confidential and proprietary information belonging to one party (the “Disclosing Party”) that is revealed to the other party (the “Receiving Party”) during the Disclosure Period, which begins on the effective date and ends April 26, 2011. Confidential Information, regardless of the form in which it appears, may include, without limitation, information about customers, business and marketing plans, financial data, expertise of employees, forecasts and strategies that is related to the business of the Disclosing Party and is of the type of information that would reasonably be deemed to be confidential.
-2.                                      Use Restriction. The Receiving Party agrees to use the Confidential Information for the sole purpose of evaluating and negotiating the Business Transaction.
-3.                                      Disclosure Restrictions and Exceptions. The Receiving Party will disclose Confidential Information only to its employees and to its representative whose participation is necessary or helpful to evaluate and advance to the Business Transaction and who have agreed to be bound by the terms of this Agreement. The Receiving Party will limit the unauthorized disclosure of Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own confidential information. Notwithstanding anything to the contrary in this Agreement, the Receiving Party is not prohibited from disclosing Confidential Information it is legally compelled to disclose (by deposition, subpoena, civil investigative demand, court order or otherwise), provided that the Receiving Party gives the Disclosing Party prompt written notice of any such required disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained and the Disclosing Party has not waived compliance with the provisions of this Agreement, the Receiving Party will furnish only that portion of the Confidential Information which the Receiving Party is advised by opinion of counsel it is legally required to furnish and will exercise reasonable efforts to limit the scope and content of such disclosure and obtain confidential treatment of such Confidential Information, Furthermore, the Receiving Party’s obligations under this Agreement do not apply with respect to any Confidential Information that (a) is or becomes generally available to the public other than from the improper action of the Receiving Party, (b) is developed by the Receiving Party without reference to the Confidential Information, (c) was in the Receiving Party’s possession before receipt from the Disclosing Party, or (d) is received by the Receiving Party from a third party who is not subject to an obligation of confidentiality owed to the Disclosing Party.
-4.                                      Nondisclosure of Possible Business Transaction. Except as permitted by the previous paragraph, neither the Receiving Party nor the Receiving Party’s representatives will disclose to any person the fact that the Confidential information has been made available to the Receiving Party or the Receiving Party’s representatives or that the Receiving Party or the Receiving Party’s representatives have inspected any portion of the Confidential Information.
-5.                                      Waiver. The failure of a party to insist, in one or more instances, upon performance of any of the provisions or conditions of this Agreement will not be construed as a waiver of any other provision or condition of this Agreement, and no present waiver will be construed as a future waiver of such provision or condition.
-6.                                      Remedies. Because of the unique and proprietary nature of Confidential Information, it is understood and agreed that remedies at law for a breach by the Receiving Party of its obligations under this Agreement may be inadequate and that in the event of such breach or threatened breach the
-1
-Disclosing Party will be entitled to seek equitable relief, including without limitation injunctive relief and specific performance. The remedies set forth in this Section are in addition to any other remedies available for any such breach or threatened breach, including the recovery of damages from the breaching party.
-7.                                      Assignment. This Agreement is not assignable by either party without the prior express written consent of the other, except that UHS may assign this Agreement to an affiliate or to a successor in interest to which the business relates.
-8.                                      Entire Agreement and Amendment. This Agreement states the entire understanding of the parties regarding the Disclosing Party’s Confidential Information and it cannot be altered or amended without a writing signed by both parties. This Agreement will not be construed to create any obligation on the part of either party to retain the other party’s services or to compensate the other party in any manner.
-9.                                      Return of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all documents or other materials furnished by the Disclosing Party constituting Confidential Information, together with all copies thereof in the possession, custody or control of the Receiving Party, without retaining any copies. Any destruction must be confirmed by the Receiving Party to the Disclosing Party in writing. Notwithstanding anything to the contrary set forth herein, the Receiving Party is not required to return or destroy computer files stored in the ordinary course of its business as a result of automated back-up procedures (subject, however, to the confidentiality restrictions set forth herein).
-10.                               Term. The Receiving Party’s obligations imposed pursuant to this Agreement will continue for two years from the date hereof.
-ACCEPTED AND AGREED TO:
-Universal Hospital Services, Inc.
-Emergent Group, Inc.
-7700 France Avenue South, Suite 275
-10939 Pendleton Street
-Edina, MN 55435-5228
-Sun Valley, CA 91352
-By:
-/s/ Timothy W. Kuck [ILLEGIBLE]
-By:
-/s/ Bruce J. Haber
-Timothy W. Kuck
-Bruce J. Haber
-Its:
-Executive Vice President
-Its:
-Chairman & CEO
-Date:
-10/26/10
-Date:
-10/26/10
-2

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-<PAGE>
-                            NAVIDEC, INCORPORATED
-                    TRADE SECRET/NON-DISCLOSURE AGREEMENT
-     In consideration of the mutual promises made herein, as well as the
-agreement between Navidec, Incorporated and _______________ , the parties
-hereby agree as follows:
-     ____________________ , agrees that, in consideration for being shown or
-told about certain trade secrets or property belonging to Navidec,
-Incorporated, ____________________, shall not disclose or cause to be
-disclosed, disseminated or distributed any information concerning said trade
-secret or property to any person, entity, business or other individual or
-company without the prior written permission of Navidec, Incorporated.
-     Further, ___________________ , agrees not to use, either directly or
-indirectly any of the material, ideas, objects or portions thereof of said
-trade secret or property disclosed by Navidec, Incorporated in any manner
-whatsoever without the prior written consent of Navidec, Incorporated.
-     Any dispute that arises hereunder shall be resolved by arbitration
-pursuant to the rules of the American Arbitration Association or the rules of
-the State of Colorado.
-     In the event that any litigation or arbitration is commenced to enforce
-any of the provisions of this agreement, the prevailing party of said
-litigation shall be entitled to all costs thereof including reasonable
-attorney's fees.
-     This agreement shall be governed by and interpreted in accordance
-without the laws of the State of Colorado.
-     EXECUTED this _____________ day of __________________ 1996, in Englewood,
-in the State of Colorado.
-                                       ---------------------------------------
-                                       Navidec, Incorporated
-                                       ---------------------------------------
-                                       (Signature of Agreeing Party)

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-                                                      i/c/w Contract No. G12463P
-                           NON-DISCLOSURE AGREEMENT
-                           ------------------------
-This agreement, made and entered into this 15th day of April, 1996, by and
-between Assessment Systems, Inc., a corporation having an office at 780 Third
-Avenue, New York, N.Y. 10017 (hereinafter referred to as "CONSULTANT")  and
-Telesector Resources Group, Inc, ("NYNEX"), a corporation duly organized and
-existing under the laws of the State of Delaware and having an office at 240
-East 38th Street, New York, New York 10016. NYNEX shall remain and include
-Telesector Resources Group, Inc., its holding and parent companies, and its or
-their affiliates and subsidiaries.
-WITNESSETH THAT:
-WHEREAS, in order for CONSULTANT to provide consultant services to NYNEX it may
-be necessary or desirable for NYNEX to disclose to CONSULTANT certain
-confidential and proprietary material, information, data, and other
-communications concerning NYNEX's past, current, future and proposed or
-potential customers, products, services, operations, business forecasts,
-procurement requirements, plans strategies and technology; and
-WHEREAS, CONSULTANT and NYNEX wish to define the agreed upon terms and
-conditions governing the confidentially of material, information and data
-furnished and to be furnished by NYNEX to CONSULTANT in connection with its
-present and future business plans.
-NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and
-undertakings expressed herein, agree with each other as follows:
-1.   For the purposes of this Non-Disclosure Agreement, the term "Confidential
-Information" shall mean material, information, data and other communications
-(a) disclosed by NYNEX and/or one or more of its parent, subsidiary or
-affiliated corporations, appropriately marked as "Confidential," "Proprietary"
-or the like or otherwise disclosed in a manner consistent with its proprietary
-and confidential nature; or (b) produced during the course of the working
-relationship between NYNEX and CONSULTANT, which would either give NYNEX'
-competitors an advantage or diminish or eliminate NYNEX' advantage over its
-competitors.
-2.   ALL NYNEX Confidential Information:
-     (a)  is hereby acknowledged by CONSULTANT to be of a proprietary nature to,
-and to constitute secrets of NYNEX;
-     (b)  shall not be copied, used, distributed, disclosed, disseminated or
-communicated in any way or form by CONSULTANT whether or not for its own
-benefit, to anyone outside or within its own organization, except on a
-"need-to-know" basis to the extent necessary for: (i) negotiations, discussions
-and consultations with personnel or authorized representatives of NYNEX; (ii)
-supplying NYNEX with products or services at its order; (iii) preparing bids,
-estimates and proposals for submission to NYNEX; and (iv) any other purpose
-which NYNEX may authorize in writing;
-     (c)  shall not be used by CONSULTANT for any purposes other than those set
-forth herein, without the experts prior written permission of NYNEX;
-     (d)  shall be held by CONSULTANT in the strictest confidence, and shall be
-treated by it with the same degree of care to avoid disclosure to any third
-party as is used with respect to CONSULTANT'S own information of like
-importance, or, a minimum, shall be treated with a reasonable degree of care to
-avoid any such disclosure. CONSULTANT shall be liable for the disclosure of
-Confidential Information of
-<PAGE>
-NYNEX if such care is not used. The burden shall be upon CONSULTANT to show that
-such care, in fact, was used; and
-     (e)  Confidential Information is hereby acknowledged by CONSULTANT to be
-the sole property of NYNEX and shall be returned to NYNEX (including, without
-limitation, all materials, documents, drawings, models, apparatus, sketches,
-designs, specifications and lists, encompassing or evidencing same or related
-thereto, and all copies/formats thereof), within seven (7) days after receipt by
-CONSULTANT of a written request from NYNEX setting forth the Confidential
-Information to be returned. Upon receipt of such request, CONSULTANT also shall
-erase or destroy any such Confidential Information in any computer memory or
-data storage apparatus.
-3.   The obligations set forth in Paragraph 2 hereof shall not apply, or shall
-terminate, with respect to any particular portion of NYNEX Confidential
-Information which:
-     (a)  was in CONSULTANT's possession, free of any obligation of confidence,
-prior to receipt from NYNEX, as proven by CONSULTANT's written records;
-provided, however, that CONSULTANT immediately informs NYNEX, in writing, to
-establish its prior possession;
-     (b)  is already in the public domain at the time NYNEX communicates it to
-CONSULTANT, or becomes available to the public through no breach of this
-Non-Disclosure Agreement by CONSULTANT;
-     (c)  is received independently from a third party free to disclose such
-information to CONSULTANT;
-     (d)  is developed by CONSULTANT, independently of and without reference to
-any Confidential Information of NYNEX or any other information that NYNEX has
-disclosed in confidence to any third party, as proven by CONSULTANT's written
-records;
-     (e)  is disclosed by CONSULTANT to a third party, with the express prior
-written permission of NYNEX;
-     (f)  is disclosed by CONSULTANT in order to satisfy any legal requirement
-of any competent government body; provided, however, that immediately upon
-CONSULTANT's receipt of any such request, CONSULTANT shall first advise NYNEX of
-same before making any disclosure to such body, so that NYNEX may either
-interpose an objection to such disclosure before such body, or take action to
-assure confidential handling of the Confidential Information by such body, or
-take other action to protect the Confidential Information which NYNEX deems
-appropriate under the circumstances; or
-     (g)  in any event, five (5) years after the date of execution of this
-Non-Disclosure Agreement.
-4.   Nothing contained in this Non-Disclosure shall be construed as obligating
-NYNEX to disclose any particular information to CONSULTANT.
-5.   Nothing contained in this Non-Disclosure Agreement shall be construed as
-granting to or conferring on CONSULTANT, expressly or impliedly, any rights, by
-license or otherwise, to the Confidential Information of NYNEX or any other
-material, information or data, or any invention, discovery, improvement or
-product conceived, made or acquired prior to, on or after the date of this
-Non-Disclosure Agreement.
-6.   CONSULTANT warrants and represents that CONSULTANT has bound its employees,
-agents and subcontractors to the terms and conditions of this Agreement or that
-each and every employee, agent or subcontractor has personally executed a
-Non-Disclosure Agreement containing terms and conditions no less stringent than
-the terms and conditions contained herein; and furthermore CONSULTANT hereby
-<PAGE>
-agrees to indemnify, hold harmless and defend NYNEX from and against any loss,
-cost, damage, expense or claim arising out of any breach of this provision or
-the failure of CONSULTANT or its employees, agents or subcontractors to protect
-such Confidential Information.
-7.   This Non-Disclosure Agreement shall become effective upon the day and year
-first written, and shall remain in effect until terminated in writing by either
-party. Notwithstanding any such termination, the rights and obligations with
-respect to the disclosure of Confidential Information set forth herein shall
-survive the termination of this Non-Disclosure Agreement.
-8.   CONSULTANT further agrees that it shall not, without the prior written
-consent of NYNEX, make any news release, public announcement, or denial or
-confirmation of all or any part of the discussions or negotiations, or in any
-manner advertise or publish the fact that the parties have entered into
-discussions or negotiations with each other, or disclose any details connected
-with such discussions or negotiations to any third party, including any
-disclosure with respect to this Non-Disclosure Agreement, the negotiations
-culminating herein, or any phase of any program hereunder.
-9.   No term or provision of this Non-Disclosure Agreement shall be deemed
-waived, and no breach excused, unless such waiver or consent shall be in writing
-and signed by the party claimed to have waived or consented. Any consent by any
-party to, or waiver of, a breach by the other, whether express or implied, shall
-not constitute a consent to waiver of, or be cause for, any other, different or
-subsequent breach.
-10.  The construction, interpretation and performance of this Agreement and all
-transactions under it shall be governed by the laws of the State of New York.
-   ASSESSMENT SYSTEMS, INC.                              NYNEX
-By: /s/ Eli Salig                                 By: /s/ Harold Bell
-   ----------------------------                      ---------------------------
-Name: ELI SALIG                                   Name:  HAROLD BELL
-     --------------------------                        -------------------------
-        print                                                print
-Title:  EVP                                       Title:  DIRECTOR
-      -------------------------                         ------------------------
-Date: 10 MAY 1996                                 Date:  5/14/96
-     --------------------------                        -------------------------
-<PAGE>
-                                                                           NYNEX
-                                                         CONTRACT NO. G12463P
-                                                         AMENDMENT NO. 01
-                                        ACCEPTANCE SHALL BE INDICATED BY
-                                        (1) SIGNING AND (2) RETURNING DUPLICATE
-                                            -------         -------------------
-Assessment Systems, Inc.                     Telesector Resources Group, Inc
-780 Third Avenue, 22nd floor                 (A NYNEX Company)
-New York, N.Y. 10017                         240 East 38th Street, 15th floor
-Attn: Mr. Bernard Reynolds                   New York, N.Y. 10016
-                                             Attn: Mr. Sean Mahoney - SPL
-SERVICE:  Testing, assessment and interview process of additional field
-personnel.
-Telesector Resources Group, Inc., (herein after referred to as NYNEX) Agreement
-with you No. G12463P is amended as follows:
-Effective July 9th, 1996, Exhibit A--Statement of Work, will be expanded to
-provide services for additional NYNEX field personnel, and Exhibit
-B--Compensation, will be modified to provide for compensation for the additional
-service. Exhibits A and B are attached and are made part of the Agreement.
-All other Terms and Conditions of the Agreement are reaffirmed and remain in
-effect to the extent that they do not conflict with this Agreement.
-(1) Sign Here and (2) Return To Address Above:
-    -----------------------------------------
-                                                TELESECTOR RESOURCES GROUP, INC.
-          ASSESSMENT SYSTEMS, INC.              (A NYNEX COMPANY)
-By /s/ Eli Salig                                By /s/ Harold Bell
-   ----------------------------------             -----------------------------
-Title EXEC. V.P                                 Title Dir Strategic Servicing
-     --------------------------------                ---------------------------
-Name  ELI SALIG                                 Name  HAROLD BELL
-     --------------------------------               ----------------------------
-      (print)                                          (print)
-Accepted: Date 24 July 1996
-               ------------

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-EXHIBIT C:  MUTUAL NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
----------
-     THIS AGREEMENT IS ENTERED INTO BY AND BETWEEN COMPANY, INC., 1275 HARBOR
-BAY PARKWAY, SUITE 100, ALAMEDA, CA 94502 ("Company") AND TELECOMMUNICATIONS
-D'HAITI S.A.M. ("BUYER").
-     1. This Agreement shall apply to all confidential and proprietary
-information disclosed by the parties to the other, including but not limited to
-confidential product planning information, product specifications and other
-proprietary and business and technical information (hereinafter referred to as
-"Confidential Information"). As used herein, "Confidential Information" shall be
-in written, graphic, machine recognizable or other tangible or electronic form
-and marked "Confidential" or "Proprietary" or shown by implication that it is
-imparted or disclosed in confidence, or if disclosed orally or visually, shall
-be reduced to writing in summary form, identified as "Confidential Information"
-and sent to the Receiving Party within 15 days following such oral or visual
-disclosure.
-     2. Company and BUYER mutually agree to hold the other party's Confidential
-Information in strict confidence and not to disclose such Confidential
-Information to any third parties except after receiving prior consent by the
-disclosing party in writing.  Company and BUYER shall use the same degree of
-care to avoid disclosure of such Confidential Information as each employs with
-respect to its own proprietary information of like importance or a greater
-degree if reasonable.
-     3. Company and BUYER agree that they will not use the other party's
-Confidential Information for any purpose other than for the intended purposes,
-without the prior written permission of the other party.
-     4. Company and BUYER mutually agree they may disclose such Confidential
-Information to their respective responsible employees with a bona fide need to
-know, and Company and BUYER agree to instruct all such employees not to disclose
-such Confidential Information to third parties and will ensure that such
-employees have agreed to similar non-disclosure provisions with Company or the
-BUYER, its own employees respectively.
-     5. Information shall not be deemed Confidential Information and the
-receiving party shall have no obligation regarding any information for which it
-can be proven in written documentation (a) is already known to the receiving
-party at the time that it is disclosed without use of the Confidential
-Information; (b) is or becomes publicly known through no wrongful act contrary
-to this Agreement of the receiving party; (c) is rightfully received from a
-third party without obligation of confidence or restriction on disclosure from
-receiving party and without breach of this Agreement; (d) is independently
-developed by the receiving party without use of Confidential Information; (f) is
-disclosed pursuant to a requirement of a valid court order provided that the
-Receiving Party provides (i) prior written notice for the disclosing party of
-such obligation and (ii) the opportunity to oppose such disclosure and (iii) it
-is disclosed for the extent and purposes or the order only.
-                                      -22-
-<PAGE>
-Strategic Alliance [*] Lines                               Contract No. HT041101
-Teleco Network Expansion
-     6.  All Confidential Information shall remain the property of the
-disclosing party, and upon the written request of either party, the other party
-shall promptly return to the disclosing party all Confidential Information
-disclosed to it and all copies thereof or at the disclosing party's option shall
-destroy all such Confidential Information and shall provide the receiving party
-with a certificate that all Confidential Information has been destroyed.
-     7.  Company and BUYER recognize and agree that nothing contained in this
-Agreement shall be construed as granting any rights, by license or otherwise to
-any Confidential Information disclosed pursuant to this Agreement.
-     8.  This agreement shall be binding upon and inure to the benefit of the
-party's successors and assigns. This Agreement shall not be assignable by either
-party for the written consent of the other party, and any purported assignment
-not permitted hereunder shall be void. This document constitutes the entire
-agreement between the parties with respect to the subject matter hereof, and
-shall supersede all previous, understandings and agreements, either oral or
-written, between the parties or any official or representative thereof.
-     9.  The obligations undertaken by each party pursuant to this Agreement
-shall remain in effect for three years from the last date of disclosure of
-Confidential Information, and shall survive any termination or expiration
-hereof.
-     10. None of the Confidential Information disclosed by the parties
-constitutes any representation, warranty, assurance, guarantee or inducement by
-either party to the either with respect to the infringement of trademarks,
-patents, copyrights; any right of privacy; or any rights of third persons.
-     11. The parties hereto are independent contractors.
-     12. This Agreement may be modified only by written amendment signed by both
-parties.  This Agreement shall be construed in accordance with the laws of the
-State of California without regard to the conflict of laws provisions and shall
-be subject to the jurisdiction of the courts of the State of California.
-     13. The receiving party may make copies of Confidential Information only to
-the extent necessary for the purpose of this Agreement provided that the copies
-are marked "Confidential" and treated as Confidential Information in accordance
-with the terms of this Agreement.
-     14. Accordingly, nothing in this Agreement will be construed as a
-representation or inference prohibiting either party from developing products,
-having products developed for it, from entering into joint ventures, alliances,
-or licensing arrangements that all without violation of this Agreement, compete
-with the products or systems embodying the Confidential Information.
-                                      -23-

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-Exhibit 10.8
-                   NON-DISCLOSURE AND NON-CIRCUMVENT AGREEMENT
-This agreement is made between the parties, effective as of the signatory dates
-below, for the purpose of assisting each other in certain Merchant and
-Investment Banking transactions for the "Company's" project or business and
-assisting each other in providing other services as may occur from time to time.
-Both parties agree to maintain complete confidentiality concerning the business
-affairs of the other and all proprietary information which each may receive from
-the other. Both parties agree to assume that any information which is divulged
-to the other is proprietary information and each agrees not to divulge or
-disseminate any such proprietary information to third parties without the
-written consent of the other. Neither party may use information divulged to the
-other in any independent trade or business enterprise or financing transaction.
-Both parties agree not to circumvent each other in dealing with the contacts of
-the other. Each party agrees to negotiate directly and solely with and through
-the other to any new potential financing, joint ventures, mergers, acquisition
-or other opportunities, which one makes known to the other, and each shall
-specify the particular capital sources and/or project.
-Both parties agree not to contact the clients of the other for any reason
-without written consent of the other and will take all the necessary precautions
-to insure that the parties' clients will not communicate directly without
-written consent.
-All notices of discharge, termination or discontinuance of service, by the other
-party, must be submitted in written form and sent by certified mail or verified
-e-mail to the address of record of the notified party.
-IN WITNESS WHEREOF, the parties have executed this agreement, which is effective
-as of the date of execution.
-AMERICAN SOIL TECHNOLOGIES INC. AGRIBLEND DIVISION
-Officer: /s/ S. F. Lee
-         ---------------------------
-Date: 7/25/01
-      ------------------------------
-The undersigned has received a copy of this Agreement this 25th day of July,
-2001 and agrees to the terms set forth herein.
-Company Name: BioPlusNutrients
-              ----------------------
-OFFICER: /s/ JOHN H. KUNZ
-        ----------------------------
-Date: 7/25/01
-     -------------------------------

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-EX-99.(d)(3)
-Exhibit (d)(3)
- CONFIDENTIALITY AGREEMENT
-This Confidentiality Agreement (“Agreement”) is made and entered into as of April 9, 2012
-(“Effective Date”), by and between American Blue Ribbon Holdings, LLC, a Delaware limited liability company, with a principal place of business located at 400 West 48th Avenue, Denver, Colorado 80216 (“ABRH”), and J. Alexander’s Corporation, a Tennessee corporation, with
-a principal place of business located at 3401 West End Avenue, Suite 260, Nashville, Tennessee 37203 (“Company”).
-RECITALS
-WHEREAS, ABRH and its parent company, Fidelity Newport Holdings, LLC (“FNH”), and the Company are interested in pursuing a
-potential business transaction (“Potential Transaction”) which would benefit ABRH, FNH, and the Company;  WHEREAS,
-certain ABRH confidential information must be disclosed from time to time to the Company in order to pursue such opportunity; and  WHEREAS, ABRH is willing, but only on the terms and conditions set forth below, to disclose its confidential information to the Company.
-NOW THEREFORE, in consideration of the foregoing and the following promises and covenants and other good and valuable consideration, the
-receipt and sufficiency of which are acknowledged, and intending to be legally bound, the parties agree as follows:
-AGREEMENT
-1.         Confidential Information. “Confidential Information,” as used herein,
-means all information provided by ABRH to the Company and its Representatives (as defined below) in connection with the Potential Transaction, including the existence of this Agreement and the discussions or negotiations regarding the above
-transaction, and the whole or any portion or phase of any scientific or technical information, invention, innovation, design, process, procedure, specification, formula, improvement, business or financial information, equipment, listing of names,
-addresses, or telephone numbers, or other information relating to ABRH’s business or profession which is secret and of value, regardless of form, including but not limited to (a) pricing; (b) balance statements, profit and loss
-statements, store operating cash flow statements, business/financial models and projections, forecasts, loan documents/financing terms, and other financial documents; (c) research, development, algorithms, data, studies, and know-how;
-(d) strategies, operations, methods, planning, products, recipes, and menus; (e) product compounds, types, shapes, devices, parts, and materials; (f) product development techniques or technologies, methods of synthesis, modeling and
-coding information, and packaging procedures; (g) shelf life goals, plant equipment/machinery, design and capacities, manufacturing processes, product volume, and distribution and logistical strategies and practices, including but not limited
-to freight charges, communications, deliveries, and transportation processes and arrangements; (h) markets, sales and cost data and sales and marketing techniques, technologies, processes,
-  400 West 48th Avenue Denver CO 80216 303.296.2121
-procedures, artwork/creative, materials, videos, and productions; (i) product development, design information, and product ingredient usage and techniques; (j) franchise objectives,
-arrangements, structures, agreements, relationships, fees, royalties, contributions, marketing techniques, processes and procedures, and cooperative obligations; (k) leases and subleases and the terms of any agreement and the discussions,
-negotiations, and proposals related to that agreement or lease or sublease, including the parties’ identities; (l) software and hardware configuration, information, and capacities; (m) correspondences, summaries, abstracts, surveys,
-plans, drawings, insurance policies, and intellectual properties, including but not limited to trademarks, patents, and copyrights; (n) pending claims, disputes, and party resolutions; (o) employee background information and personal
-identification, employment histories, resumes, and payroll information; (p) employee benefit plans, training materials, policies, and procedures; (q) all analyses or other documents prepared by ABRH, FNH, the Company, or any of their
-affiliated entities, members/shareholders/partners, investors, managers, directors, officers, employees, advisors, attorneys, accountants, consultants, subcontractors, representatives, or affiliates, which contain or otherwise reflect information
-not to be disclosed herein, or has been marked as “Confidential”; and (r) the proprietary or confidential information of any third party who may disclose such information to a party in the course of such party’s business.
- 2.         Term. Unless otherwise provided herein, all obligations under this
-Agreement shall terminate and cease to have any force or effect on the earlier of: (i) two years from the date hereof, or (ii) the date of any consummation of the Potential Transaction.
-3.         Non-disclosure of Confidential Information. The Company expressly agrees that
-it will keep ABRH’s Confidential Information confidential and that neither the Company nor any of its affiliates nor any of its or their directors, officers, employees, operating partners, consultants, or advisors (including without limitation,
-attorneys and accountants) (collectively, but only to the extent that such persons actually receive Confidential Information, “Representatives”) will use, for its own benefit (other than in connection with the Potential Transaction), or
-communicate or disclose (orally, in writing, or in any other manner) to any other person or entity any Confidential Information, or that the Company or any of its Representatives have received or otherwise been provided access to Confidential
-Information by any other party. The Company further agrees that it and its Representatives will not in any way cause or encourage another person to disclose ABRH’s Confidential Information to any person or entity or judicial or administrative
-agency or body for any reason whatsoever unless required to do so pursuant to legal process. The Company will only use ABRH’s Confidential Information for the transaction contemplated above and will only disclose ABRH’s Confidential
-Information to its Representatives who need to know such information and who are informed of the terms of this Agreement and are directed to keep such Confidential Information confidential. The Company will be responsible for any breach of the terms
-of this Agreement by its Representatives. The Company will not, without ABRH’s written consent, disclose or issue any news release, announcement, denial, or confirmation of this Agreement or any actual or potential business negotiation or
-relationship between the parties. The Company and its Representatives receiving Confidential Information from ABRH will protect ABRH’s Confidential Information from both unauthorized use and disclosure by exercising at least the same degree of
-care that is used for similar information of its own, but no less than reasonable care.
-  400 West 48th
-Avenue Denver CO 80216 303.296.2121
-(a)
-Exclusions.    The term, “Confidential Information”, does not include, and the Company has no obligation to protect information which is (i) known to or acquired by the Company before disclosure under this
-Agreement; (ii) independently developed by the Company without relying on ABRH’s Confidential Information; (iii) or becomes part of the public domain (other than as a result of disclosure by the Company or its Representatives in
-violation of this Agreement) or lawfully obtained from a third party who is not, to the Company’s knowledge, under an obligation of confidentiality to ABRH with respect to such information; (iv) free of confidentiality restrictions by
-written agreement of ABRH; or (v) required to be disclosed by any law, government regulation, or judicial or other governmental order, provided that, if legally permissible, the Company provides reasonable advance written notice to ABRH to
-afford ABRH the opportunity to seek a protective order or waive compliance with the provisions of this Agreement. If the Company becomes legally obligated or receives a subpoena or other legal demand issued by a court of competent jurisdiction or
-governmental body to disclose any Confidential Information, it shall cooperate with ABRH in seeking a protective order or other appropriate remedy, and shall use reasonable efforts to protect the confidential and proprietary status of any disclosed
-Confidential Information. ABRH will reimburse the Company and its Representatives for reasonable out-of-pocket expenses incurred in connection with its compliance with the immediately preceding sentence.
-4.         Nature of Relationship. ABRH has no obligation to disclose any Confidential
-Information that it owns or possesses to the Company or its Representatives under this Agreement. Neither party has any obligation to enter into any transaction with the other. Furthermore, ABRH warrants that it has the right to disclose its own
-Confidential Information, but does not otherwise make any representation as to their accuracy or completeness. All Confidential Information of ABRH will remain the sole and exclusive property of ABRH. This Agreement grants no rights of ownership,
-licenses, or any other intellectual property right. Moreover, this Agreement does not create any agency, partnership, joint venture, or any other such relationship.  5.         Return of Materials. Confidential Information may be reproduced by the Company and Company Representatives solely for the purpose of evaluating
-the Potential Transaction. Upon request of ABRH for any reason, the Company shall promptly return to ABRH, or at Company’s option, destroy (except originals, equipment, and devices delivered by ABRH to the Company, which shall be returned to
-ABRH), all equipment, documents, devices of any kind, or other material of any kind, in any form, containing any Confidential Information, together with all copies, summaries, abstracts, excerpts, extracts, replicas, reproductions, and samples of
-any of the foregoing, and certify the destruction of any copy or partial copy made. Notwithstanding the foregoing, the Company may retain such copies of the Confidential Information that reside on the Company’s back-up storage or archiving
-system, solely for document retention purposes and not for any other use, and for compliance purposes as required by law or to evidence compliance of Company’s obligations under this Agreement.
-6.         Disclosure and Solicitation of Employees. The Company and its Representatives
-will make no contact, written or verbal, with any of ABRH’s management, staff, or employees not directly involved with the transaction contemplated above for purposes of evaluating the
-  400 West 48th
-Avenue Denver CO 80216 303.296.2121
-Potential Transaction unless with ABRH’s written permission. Further, during the term of eighteen (18) months beginning on the date hereof, the Company shall not knowingly solicit or
-recruit management or executive level employees of ABRH who became known to the Company through work on the above transaction or purpose contemplated above, without the prior written consent of ABRH. Regardless of the above, this provision shall not
-restrict the right of the Company to solicit or recruit such employees as a result of any substantial asset purchase or sale or merger or through the general use of the media, and the Company shall not be prohibited from hiring such employees who
-answer any general advertisement or otherwise voluntarily apply for hire without having been personally solicited or recruited by the Company.  7.         Irreparable Injury; Injunctive Relief. The Company acknowledges that any unauthorized or wrongful disclosure or use of Confidential Information by
-the Company, including the Company’s Representatives, or any other breach by the Company, may result in irreparable injury to ABRH that is not adequately compensable in monetary damages. Accordingly, the Company acknowledges that in the event
-of a breach of this Agreement, ABRH shall be entitled to seek injunctive relief in any court of competent jurisdiction without the need to post any bond and in addition to any other remedy available at law or in equity. The Company will not raise
-the defense of an adequate remedy at law in the event that ABRH seeks injunctive relief in the event of a breach of this Agreement by the Company.  8.         Miscellaneous.  (a)         Assignment. This Agreement may not be delegated or otherwise assigned in whole or in part by the Company without the prior written consent of
-ABRH. This Agreement is binding on and enforceable by each party’s permitted successors and assignees. Any assignment or delegation in violation of this paragraph is null and void.
-(b)         Governing Law. This Agreement shall be governed by the laws of
-the State of Colorado without regard to its conflict of laws principles. The parties irrevocably consent to the jurisdiction of the courts of the State of Colorado and of any federal court located within the State of Colorado for all purposes in
-connection with any action or proceeding that is brought by ABRH that arises out of this Agreement.
-(c)         Modification and Waiver. This Agreement constitutes the entire
-agreement of the parties and supersedes all prior or contemporaneous agreements, proposals, inquiries, commitments, discussions, and correspondences, whether written or oral. No modification to this Agreement shall be effective unless in writing and
-signed by a duly authorized representative of each party. No waiver of any provision of this Agreement shall be effective unless signed by the waiving party.  (d)         Severability and Integration. Inapplicability, illegality, or unenforceability of any provision of this Agreement shall not limit or impair the
-operation or validity of any other provision that can be given effect without the invalid provision.
-(e)         Counterparts. This Agreement may be executed in one or more
-counterparts, all of which together shall constitute one and the same instrument, and may
-  400 West 48th
-Avenue Denver CO 80216 303.296.2121
-be executed and transmitted by facsimile or electronic means (e.g., email with attachment in portable document format), and such facsimile or electronic signatures, when delivered, shall be
-deemed as effective as original signatures.  (f)
-Authority. The undersigned warrants that he/she is fully authorized to represent and execute this Agreement on behalf of his/her respective party.
-  400 West 48th
-Avenue Denver CO 80216 303.296.2121
-   IN WITNESS WHEREOF, the parties, intending to be legally bound, have
-caused this Agreement to be executed by their duly authorized representatives as of the date first above-written.
-American Blue Ribbon Holdings, LLC
-J. Alexander’s Corporation
-by:
- /s/ Hazem Ouf
-by:
- /s/ Lonnie J. Stout, III
-Hazem Ouf
-Lonnie J. Stout, III
-Title:
-Chief Executive Officer
-Title:
- Chairman, President and
-Chief Executive Officer
-  400 West 48th
-Avenue Denver CO 80216 303.296.2121

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-                                    EXHIBIT H
-                            NON-DISCLOSURE AGREEMENT
-FFI Contact Name: ____________________    FFI Contact Phone:___________________
-                                FORMFACTOR, INC.
-                            NON-DISCLOSURE AGREEMENT
-                                    (COMPANY)
-This Non-Disclosure Agreement ("Agreement") dated as of ________________________
-("Effective Date"), is by and between FormFactor, Inc. ("FormFactor"), a
-Delaware corporation, having an office at 5666 La Ribera Street, Livermore, CA
-94550, and
-        Name: , ____________________________________________________________
-having an office at
-        Street Address:____________________________________________________,
-        City, State, Zip Code:____________________________________________, on
-its own behalf and on behalf of its parents, subsidiaries and affiliated
-companies (collectively "Recipient").
-        FormFactor desires to disclose, and Recipient desires to receive for its
-own internal evaluation, information relating to certain of FormFactor's
-technologies and business strategies, which information is deemed to be
-confidential, secret and/or proprietary to FormFactor, for the sole purpose of
-assisting in the determination of their mutual interest in a business
-relationship ("Purpose"). Accordingly, FormFactor and Recipient agree as
-follows:
-<PAGE>
-1. CONFIDENTIAL INFORMATION.
-    1.1 "Confidential Information" shall mean:
-        (a) All information disclosed by FormFactor to Recipient whether such
-    information is disclosed in written, graphic, electronic, oral or sample
-    form; and
-        (b) All component specifications, component and contact structures,
-    equipment designs, electronic configurations, manufacturing processes and
-    methodologies, including any information which can be obtained by
-    examination, testing, repair, reverse engineering and analysis of any
-    hardware, or component part thereof comprising, relating to, or a part of a
-    product manufactured or assembled with FormFactor's technology,
-    notwithstanding the fact that the requirements for marking and designation
-    referred to in Paragraph 2.1 have not been fulfilled.
-    1.2 Confidential Information shall not include information that Recipient
-can demonstrate, through extant, contemporaneously prepared, written records:
-        (a) Is or becomes part of the public domain through no fault or breach
-    on the part of Recipient, any of its subsidiaries, affiliates or persons to
-    whom Confidential Information is disclosed as permitted by this Agreement;
-    or
-        (b) Is known to Recipient or any of its subsidiaries or affiliates prior
-    to the disclosure by FormFactor; or
-        (c) Is subsequently rightfully obtained by Recipient or any of its
-    subsidiaries or affiliates from a third party who has the legal right to
-    disclose or transfer it to Recipient.
-2. DISCLOSURE AND PROTECTION OF CONFIDENTIAL INFORMATION.
-    2.1 As to any information which FormFactor regards as "Confidential
-Information", disclosures by FormFactor following the Effective Date are subject
-to and in FormFactor's sole and absolute discretion and will be made as follows:
-        (a) If such information is in writing, or in a drawing, or in some other
-    tangible form, such information at the time of such disclosure will be
-    clearly marked as "Confidential Information"; and
-        (b) In the event that such information is orally disclosed, as may
-    happen during exchanges between the parties, FormFactor shall state that the
-    information disclosed is Confidential Information.
-    2.2 As to any information whether or not specifically designated by
-FormFactor as "Confidential Information" (as hereinabove described), FormFactor
-reserves all of its rights and remedies as may now or in the future be accorded
-to FormFactor under the patent and copyright laws as may apply to the disclosure
-or use of such information by Recipient.
-    2.3 Recipient shall use Confidential Information solely and exclusively for
-the purpose of this Agreement. Recipient shall not use Confidential Information
-for the benefit of any other party, or disclose, publish, disseminate or copy
-Confidential Information or any part thereof, to any other person, corporation
-or other organization without, in each case, obtaining the prior written consent
-of FormFactor. Recipient shall restrict any and all circulation of Confidential
-Information to a limited number of its employees on a "need to know basis" for
-the exclusive purpose of reviewing the Confidential Information for the Purpose
-of this Agreement. Recipient acknowledges that all information is provided "AS
-IS" and without any warranty, whether express or implied, as to its accuracy or
-completeness, non-infringement or use for particular purpose.
-    2.4 Recipient shall not reverse engineer, decompile or disassemble any of
-the Confidential Information or any products or samples containing Confidential
-Information; provided, however, Recipient may examine FormFactor's products or
-samples for the sole purpose of internally evaluating them. Recipient may
-examine FormFactor's products or samples for the sole purpose of internally
-evaluating them. Recipient shall use its best efforts to safeguard against the
-unauthorized use or disclosure of Confidential Information, and take security
-precautions at least as great as the precautions it takes to protect its own
-confidential and proprietary information and materials.
-    2.5 Notwithstanding anything to the contrary herein provided, Recipient
-shall not:
-        (a) Deliver or leave any samples; parts or products containing
-    Confidential Information to or with third party;
-        (b) Disclose to any third party the manufacturing or assembly process
-    used by FormFactor, or the structure of FormFactor's electronic interconnect
-    technology products; and/or
-        (c) Disclose to any third party any evaluation and testing date or
-    results, unless FormFactor gives prior written approval of such disclosure.
-    2.6 Neither execution of this Agreement nor the furnishing of any
-Confidential Information to Recipient shall be construed as granting to
-Recipient, either expressly or by implication, estoppel, or otherwise, any
-license or right to (a) make use of any such Confidential Information, or (b)
-any patents or other intellectual property of FormFactor, other than for the
-purpose. Recipient agrees that neither it nor any of its subsidiaries,
-affiliates or representatives will use Confidential Information for outer than
-the purpose without the specific and written express consent of FormFactor prior
-to such use. Furthermore, Recipient agrees that Confidential Information is the
-sole property of FormFactor and that Recipient has no proprietary interest in
-such information whatsoever.
-    2.7 Within ten (10) business days of receipt of FormFactor's written
-request, Recipient will return to
-<PAGE>
-FormFactor all information and materials, including but not limited to
-documents, drawings, programs, lists, models, records, compilations, notes,
-extracts, summaries, and any samples or parts containing Confidential
-Information, and all copies thereof containing Confidential Information,
-regardless of whether prepared by FormFactor or Recipient or any of its
-subsidiaries, affiliates or representatives. Fur purposes of this Paragraph 2.7,
-the term "documents" includes all information fixed in any tangible medium or
-expression, in whatever furor or format whether known or hereafter created.
-    2.8 Recipient hereby acknowledges and agrees that unauthorized use or
-disclosure of Confidential Information Would cause serious and irreparable harm
-and significant injury to FormFactor that may be difficult or impossible to
-ascertain. Accordingly, Recipient agrees that FormFactor will have, in addition
-to all outer remedies at law or in equity, the right to seek and obtain
-immediate injunctive relief for the actual or threatened unauthorized use or
-disclosure of Confidential Information. Recipient shall notify FormFactor
-immediately upon the discovery of any unauthorized disclosure or use of
-Confidential Information, or any other breach of this Agreement by Recipient.
-Recipient will cooperate with FormFactor in every reasonable way to help
-FormFactor regain possession of the Confidential Information and prevent further
-unauthorized use.
-3. EXPORT RESTRICTIONS. Recipient agrees that it will not in any form export,
-reexport, resell, ship or divert or cause to be exported, reexported, resold,
-stripped or diverted, directly or indirectly, any product or technical data to
-any country for which the United States Government or any agency thereof at the
-time of export or reexport requires an export license or other government
-approval without first obtaining such approval.
-4. TERMS. This Agreement shall be effective as of the Effective Date and may be
-terminated by FormFactor with respect to further disclosures upon thirty (30)
-days written notice. All obligations of confidentiality and restrictions on the
-use of Confidential Information created under and by this Agreement shall remain
-in force and effect for five (5) years from the date any Confidential
-Information is or was disclosed by FormFactor Recipient or, in the event that
-FormFactor and the Recipient enter into a business relationship following the
-date of this Agreement, five (5) years following the date such business
-relationship terminates, whichever is later. All other terms and conditions of
-this Agreement shall survive the termination of this Agreement.
-5. NO OBLIGATIONS. This Agreement and any action taken pursuant to the terms and
-conditions hereof shall not obligate either party to enter into any other
-business relationship. The terms and conditions of any such relationship shall
-be subject to separate negotiation and agreement of the parties.
-6. MISCELLANEOUS.
-    6.1 This Agreement is the entire agreement between FormFactor and Recipient
-with respect to the subject matter contained herein and supersedes any prior or
-contemporaneously oral or written agreements concerning this subject matter.
-This Agreement may not be amended except by written agreement signed by
-authorized representatives of both parties. No waiver of any provision of this
-Agreement shall constitute a waiver of any other provision(s) or of the same
-provision on another occasion. 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.
-    6.2 This Agreement may not be assigned or transferred by Recipient without
-FormFactor's prior written consent.
-    6.3 This Agreement will be governed and construed in accordance with the
-laws of the State of California, without regard to its conflict of laws
-principles. The parties hereby agree to submit themselves to the jurisdiction of
-the federal and state courts within Santa Clara County, California.
-    IN WITNESS THEREOF, FormFactor and Recipient have executed this Agreement as
-of the Effective Date.
-"FORMFACTOR":                               "RECIPIENT":
-FormFactor, Inc.                            Name:   ____________________________
-                                                    (Individual or Company,
-                                                     as applicable)
-By:     _______________________________
-        (Signature)                         By:     ____________________________
-                                                    (Signature)
-Name:   _______________________________
-        (Printed Name)                      Name:   ____________________________
-                                                    (Printed Name)
-Title:  _______________________________
-        (Authorized Officer)                Title:  ____________________________
-                                                    (Authorized Officer)

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-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
-Printed Name:
-John E. Peck
-Title:
-President/CEO
-EMPLOYEE
-Printed Name:
-Billy C. Duvall
-Date:
-January 7, 2019
-Signature:
-/s/ Billy C. Duvall
-10

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-EX-10.6
-Exhibit 10.6
-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 John E.
-Peck (“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 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.
-  1
-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.    Consideration/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 pursuant to that certain Employment Agreement dated January 7, 2019, and effective as of the Effective Time, with the compensation and benefits commensurate therewith.
-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 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
-  2
-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.
-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.
-  3
-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 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
-  4
-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;
-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
-  5
-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 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
-  6
-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 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.
-  7
-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.
-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.
-  8
-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
-Printed Name:
- John E. Peck
-Title:
- President/CEO
-EMPLOYEE
-Printed Name:
- John E. Peck
-Date: January 7, 2019
-Signature:
- /s/ John E. Peck
-  10

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-<PAGE>
-                                                                 EXHIBIT (d)(1)
-NOVELL                      MUTUAL NON-DISCLOSURE AGREEMENT
-Effective Date:               January 30, 2002
-Company:                      Silver Stream Software
-Address:                      2 Federal Street
-City:                         Billerica,
-State/Zip:                    MA  01821
-Novel Contact Person:
-Name:                         Bill Smith
-Phone:                        (617) 914-8312 Fax: (801) 365-6265
-Company Contact Person:
-Name:                         CRAIG DYNES
-Phone:                        (978) 262-3441
-In order to protect certain Confidential Information which the parties desire to
-disclose hereunder, Novell, Inc. ("Novell") and the "Company" identified above
-agree to the following terms and conditions. The terms Discloser and Recipient
-as used herein apply to both parties to this Agreement in their respective roles
-as discloser of Confidential Information and recipient of Confidential
-Information.
-1. Confidential Information. The "Confidential Information" of the respective
-pathos disclosed under this Agreement is described as follows:
-Novell: Any information and materials disclosed in relation to a potential
-business transaction between the parties.
-Company: Any information and materials disclosed in relation to a potential
-business transaction between the parties.
-Confidential Information may be disclosed in oral/verbal or tangible form.
-Discloser shall mark all Confidential Information disclosed in tangible form
-with a restrictive legend. Designated below is each party's representative for
-coordinating the exchange of Confidential Information.
-2. Obligation of Confidentiality. For a period of three (3) years from the date
-of disclosure, Recipient agrees to use the same care and discretion to avoid
-disclosure, publication, or dissemination of Discloser's Confidential
-Information as it uses with its own similar information that it does not wish to
-disclose publish, or disseminate, but in no event shall Recipient use less than
-reasonable care to protect Discloser's Confidential Information. Recipient may
-disclose Confidential Information to its employees and information which may be
-retained in non-tangible form by persons who have had access to the Confidential
-Information, including without limitation general ideas, concepts, know-how
-provided that prior agreement with such parties sufficient to require that party
-to treat the Confidential Information in accordance with this Agreement.
-3. Exception. No obligation of confidentiality applies to a Confidential
-Information that Recipient can show: (i) is or becomes, publicly available
-without breach of this Agreement but only from such date as it becomes so
-available; (ii) was rightfully in the possession of Recipient without obligation
-confidentiality prior to receipt thereof from Discloser (iii) was rightfully
-disclosed to Recipient by a third party with obligation of confidentiality; (iv)
-is independently developed Recipient without use of the Confidential
-Information; or (v) disclosed by Recipient with Discloser's prior written
-consent.
-<PAGE>
-4. Recipient may use the Confidential Information solely for evaluation purposes
-in connection with Recipient business discussions with Discloser. If software is
-provided Recipient under this Agreement, Recipient agrees not to reverse compile
-or disassemble the software to discover the human perceivable portions of the
-code.
-5. Ownership: All Confidential Information remains the property of Disclosure
-and/or its licensors.
-6. Freedom of Use. Notwithstanding anything to the contrary, Recipient shall be
-free to use for any purposes the Residuals resulting from access to or work with
-Discloser's Confidential Information. However, the foregoing does not give
-Recipient the right to disclose (except as set forth in Section 3) the
-financial, statistical, or personnel information or the business plans of
-Discloser, and the foregoing shall not be deemed to grant to either party a
-license under the other party's copyright or patents. The term "Residuals" means
-information which may be retained in non-tangible form by person who have had
-access to the Confidential Information, including without limitation general
-ideas, concepts, know-how or techniques contained therein. Neither party shall
-have any obligation to limit or restrict the assignment or reassignment of
-personnel.
-Except as otherwise provided in this Agreement, the parties acknowledge that the
-communications hereunder will not serve to impair the right of either party to
-independently develop, make, use, procure or market products or services now or
-in the future that may be similar to or competitive with those offered by
-Discloser, nor require Recipient to disclose any planning or other information
-to Discloser. This Section shall survive termination of this Agreement.
-7. Termination. This Agreement shall begin on the Effective Date above. Either
-party may terminate this Agreement upon written notice to the other. Upon
-termination of this Agreement, or earlier upon Discloser's request, Recipient
-shall promptly return or destroy all documents and tangible items in its
-possession which contain any part of the Confidential Information of Discloser.
-In the event of termination of this Agreement, all obligations of
-confidentiality shall survive and continue to bind Recipient in accordance with
-their terms.
-8. Disclaimer. All Confidential Information is provided "AS IS", WITHOUT
-WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. Discloser does not represent
-or warrant the accuracy or completeness of the Confidential Information, that it
-will release any product related to the Confidential Information, or that target
-dates will be met. The entire risk arising out of the use of the Confidential
-Information remains with Recipient. Discloser may change or cancel its plans at
-any time.
-9. Limitation of Liability. IN NO EVENT SHALL DISCLOSER BE LIABLE FOR ANY
-DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS
-PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS) ARISING OUT OF
-RECIPIENTS USE OF OR INABILITY TO USE THE CONFIDENTIAL INFORMATION.
-10.  General.
-a.   This Agreement shall be governed and construed in accordance with the laws
-     of Utah (without regard to conflicts of laws provisions). In any legal
-     proceeding arising out of this Agreement, the prevailing party shall be
-     entitled to an award of its costs and reasonable attorneys' fees. The
-     parties agree that Utah state and federal courts shall have jurisdiction
-     and venue in any such proceeding.
-b.   Export Constraints. Recipient certifies that the Confidential Information
-     will only be used for the purposes expressly stated herein and will not be
-     rented, leased, sold, sublicensed, assigned, or otherwise transferred.
-     Recipient shall adhere to the U.S. Export Administration laws and
-     regulations and shall not export or re-export any technical data or
-     products received from Discloser or the direct product of such technical
-     data to any proscribed country listed in the U.S. Export Administration
-     regulations unless properly authorized by the U.S. government.
-c.   Neither party may assign its rights or delegate its duties or obligations
-     under this Agreement without prior written consent, which shall not be
-     unreasonably withheld. The parties acknowledge that they have read this
-     Agreement, understand it, and agree to be bound by the terms and
-     conditions.
-<PAGE>
-Further, they agree that the complete and exclusive statement of the agreement
-between the parties relating to this subject shall consist of this Agreement.
-Any reproduction of this Agreement by reliable means will be considered an
-original of this document. This Agreement is executed in English.
-COMPANY:  SILVERSTRAM SOFTWARE, INC.
-SIGNATURE: /s/ Craig Dynes
-NAME:    CRAIG DYNES
-TITLE:   VP/CFO
-DATE:    January 30, 2002
-NOVELL, INC.
-SIGNATURE: /s/ Bill Smith
-NAME:    BILL SMITH
-TITLE:   VP, MERGERS & ACQUISITIONS
-DATE:    January 30, 2002

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@@ -1,81 +0,0 @@
-                           NON-DISCLOSURE REQUIREMENTS
-Pursuant to the Agreement to which this Exhibit B is annexed, Company may be
-disclosing to Independent Contractor certain confidential business plans,
-development plans, reports, financial information, design documents,
-specifications, programmer notes, software (its own and/or third party), and/or
-other information, whether or not so identified (together with any notes,
-analyses, compilations, studies, or other documents that are based upon,
-contain, or otherwise reflect such information, the "Confidential Information,"
-which shall include this Agreement). The parties agree as follows with respect
-to treatment of the Confidential Information:
-      1. Independent Contractor shall use the Confidential Information solely
-for the purpose of performing the Services specified in the applicable SOW and
-not for any other purpose. Except to the extent permitted by Section 3 below,
-Independent Contractor will not disclose the Confidential Information, in whole
-or in part, to any other party. In fulfilling its obligations under this
-Agreement, Independent Contractor shall use at least the same standard of care
-it uses to protect its own information of similar kind, but not less than a
-reasonable standard of care.
-      2. The term "Confidential Information" shall be deemed not to include
-information which (i) is or becomes generally available to the public other than
-(a) as a result of a disclosure by Independent Contractor or any other person
-who directly or indirectly receives such information from the Independent
-Contractor or (b) in violation of a confidentiality obligation to the Company
-known to Independent Contractor or (ii) is or becomes available to Independent
-Contractor on a non-confidential basis from a source which is entitled to
-disclose it to Independent Contractor or (iii) is independently developed by
-Independent Contractor without benefit of the Confidential Information.
-      3. In the event that Independent Contractor is required by law or by
-interrogatories, requests for information or documents, subpoena, Civil
-Investigative Demand, or similar process to disclose any information supplied to
-Independent Contractor pursuant to the Agreement, including without limitation
-the Confidential Information or any other information the disclosure of which is
-restricted by the terms of this Exhibit B, Independent Contractor will provide
-the Company with prompt prior written notice of such request or requirement so
-that the Company may seek an appropriate protective order. If, in the absence of
-a protective order, Independent Contractor is nonetheless, in the written
-opinion of its counsel (which shall be forwarded to the Company upon request),
-compelled to disclose Confidential Information or any other information the
-disclosure of which is restricted by the terms of this Exhibit B to any tribunal
-or else stand liable for contempt or suffer other material censure or penalty,
-Independent Contractor may disclose only that portion of the Confidential
-Information or other information which it is advised in writing by its counsel
-(which shall be forwarded to the Company upon request) is so legally compelled
-and Independent Contractor will exercise its best efforts to obtain assurance
-that confidential treatment will be accorded such Confidential Information.
-      4. All Confidential Information disclosed by the Company to Independent
-Contractor shall be and shall remain the Company's property. Upon termination of
-the Agreement, Independent Contractor shall redeliver all tangible Confidential
-Information furnished by the Company. Except to the extent Independent
-Contractor is advised in writing by counsel that such action is prohibited by
-law, Independent Contractor will also destroy all written material, memoranda,
-notes, and other writings or recordings whatsoever prepared by it based upon,
-containing, or otherwise reflecting any Confidential Information. Any
-Confidential Information that is not returned or destroyed, including without
-limitation any oral Confidential Information, shall remain subject to the
-confidentiality obligations set forth in this Exhibit B.
-      5. Independent Contractor acknowledges and agrees that money damages would
-not be a sufficient remedy for any breach of this Exhibit B by Independent
-Contractor and that the Company shall be entitled to specific performance,
-including without limitation injunctive relief, as a remedy for any such breach.
-Such remedy shall not be deemed to be the exclusive remedy for breach of this
-Exhibit B but shall be in addition to all other remedies available at law or
-equity. Independent Contractor agrees to reimburse the Company for costs and
-expenses (including without limitation attorneys' fees) incurred by the Company
-in connection with the enforcement of this Exhibit B.
-      6. If any provision of this Exhibit B is not enforceable in whole or in
-part, the remaining provisions of this Exhibit B shall not be affected thereby.
-No failure or delay 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 other
-right, power, or privilege hereunder.
-                                       4

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-<PAGE>   1
-                                                                  EXHIBIT (c)(4)
-                         MUTUAL NON-DISCLOSURE AGREEMENT
-This Agreement is entered into on October 14, 1999 between Best Software, Inc.,
-with its principal place of business at 11413 Issac Newton Square, Reston, VA
-20190 and Sage Software, Inc., with its principal place of business at 56
-Technology Drive, Irvine, CA 92618.
-       WHEREAS, the Parties are contemplating business and technical discussions
-concerning a possible business combination.
-       WHEREAS, the Parties may need or want to disclose certain Information to
-each other on a confidential basis to further their discussions concerning such
-business and technical developments;
-       NOW, THEREFORE, in consideration of the disclosure of Information (as
-defined herein) by either Party, the Parties agree as follows;
-1.     Definitions:
-       "Information" is defined as communications or data including, but not
-       limited to, business information, marketing plans, technical or financial
-       information, customer lists or proposals, sketches, models, samples,
-       computer programs and documentation, drawings, specifications, whether
-       conveyed in oral, written, graphic, or electromagnetic form or otherwise.
-       "Party" is defined as either entity executing this Agreement and any
-       subsidiary, division, affiliate, or parent company of such entity.
-2.     All Information related to the parties' business or technical discussions
-       described in the Preamble to this Agreement that is disclosed by one
-       Party ("Disclosing Party") to the other ("Receiving Party") shall be
-       protected by the Receiving Party.
-3.     Information of the Disclosing Party shall remain the property of the
-       Disclosing Party. The Receiving Party agrees to protect the Information
-       of the Disclosing Party against unauthorized disclosure and warrants that
-       it applies reasonable safeguards against the unauthorized disclosure
-       Information.
-4.     The Receiving Party agrees that: (i) the Information shall be used solely
-       for the purpose described in the preamble to this Agreement; (ii) it will
-       not use any Information disclosed hereunder for any other purpose; and
-       (iii) it will not distribute, disclosure or disseminate Information to
-       anyone except its employees and agents with a need to know and who, in
-                                        1
-<PAGE>   2
-       each case, have been informed of the confidential nature of the
-       Information and have agreed to be bound by the terms of this Agreement.
-5.     The Information shall be treated as confidential and safeguarded
-       hereunder by the Receiving Party for a period of two (2) years.
-6.     This Agreement shall not apply to Information that:
-       (a)    is in or enters the public domain, through no fault of the
-              Receiving Party; or
-       (b)    is or has been disclosed by the Disclosing Party to the Receiving
-              Party or to a third party without restriction; or
-       (c)    is already in the possession of the Receiving Party, without
-              restriction and prior to disclosure of the information hereunder;
-              or
-       (d)    is or has been lawfully disclosed by a third party to the
-              Receiving Party without an obligation of confidentiality.
-       Notwithstanding the above, nothing hereunder shall prevent the Receiving
-       Party from disclosing Information which it is required to disclose by
-       court order or pursuant to the rules and regulations of a governmental
-       agency or body, in either case having jurisdiction over the Receiving
-       Party, to the extent so required by such court order or the published
-       rules and regulations of such governmental authority; provided, however,
-       that prior to any such disclosure the Receiving Party shall (i) notify
-       the Disclosing Party promptly in writing of any order or request to
-       disclose and of the facts and circumstances surrounding such order or
-       request so that the Disclosure Party may seek an appropriate protective
-       order and (ii) cooperate with the Disclosing Party in any proceeding to
-       obtain an appropriate protective order.
-7.     In the event that the above-mentioned business combination is not
-       completed, each Party agrees not to solicit, entice or offer employment
-       to any employees of the other Party before one (1) year from the date of
-       this Letter; provided, however, that the foregoing shall not prohibit
-       either Party from employing any individual who has received notice of
-       termination from, or ceased to be employed by, the other Party prior to
-       the first time such individuals discussed, directly or with any
-       representatives, employment by the hiring Party.
-8.     Each Party acknowledges that in its examination of the Information it
-       will be exposed to material nonpublic information concerning the business
-       and financial condition of the Disclosing Party and consequently the
-       Receiving Party agrees that prior to the date two (2) years from the date
-       hereof, without the prior written approval of the Board of Directors of
-       the Disclosing Party, the Receiving Party will not (and will insure that
-       its affiliates (and any person acting on behalf of or in concern with the
-       Receiving Party or any affiliate) will not) purchase or otherwise acquire
-       (or enter into any agreement or
-                                       2
-<PAGE>   3
-       make any proposal to purchase or otherwise acquire) any securities of the
-       Disclosing Party, any warrant or option to purchase such securities, any
-       security convertible into any such securities or any other right to
-       acquire such securities.
-9.     Except as expressly provided herein no license or right is granted by the
-       Disclosing Party to the Receiving Party under any patent, patent
-       application, trademark, copyright, software or trade secret.
-10.    At the Disclosing Party's request, all Information of the Disclosing
-       Party in tangible form, or any copies thereof, that is in the possession
-       of the Receiving Party shall be returned to the Disclosing Party or
-       destroyed.
-11.    Each Party agrees that it will not disclose the subject matter or terms
-       of this Agreement or the discussion between the Parties without the
-       written consent of the other Party.
-12.    This Agreement shall terminate two (2) years from the date first written
-       above. Any amendment of this Agreement must be in writing and signed by
-       authorized officials of each Party. No failure or delay in exercising any
-       right under this Agreement shall operate as a waiver thereof.
-13.    This Agreement shall be governed by the laws of the Commonwealth of
-       Virginia.
-Best Software, Inc.                           Sage Software, Inc.
-                                              -------------------
-By:        /s/ David N. Bosserman            By:    /s/ James R.  Eckstaedt
-           ----------------------                   -----------------------
-Name:      David N. Bosserman                Name:  James R. Eckstaedt
-           ------------------                       ------------------
-Title:     Chief Financial Officer           Title: Vice President Finance and
-           -----------------------                  --------------------------
-                                                    Chief Financial Officer
-                                                    -----------------------
-                                       3

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-                  CONFIDENTIAL INFORMATION DISCLOSURE AGREEMENT
-      It is understood and agreed that the following shall govern the oral
-and/or written disclosure of CONFIDENTIAL INFORMATION by VASCO DATA SECURITY,
-INC. ("VASCO") to HUCOM, INC. ("HUCOM") concerning the VASCO SmartCard Reader,
-AccessKey, Digipass and software products.
-      The CONFIDENTIAL INFORMATION is disclosed in confidence so that HUCOM may
-evaluate and use CONFIDENTIAL INFORMATION for the purpose of assisting VASCO in
-the commercial exploitation thereof. In consideration of the disclosure, HUCOM
-agrees to treat, and will treat, the CONFIDENTIAL INFORMATION disclosed to it as
-confidential until such time as the CONFIDENTIAL INFORMATION becomes publicly
-available through no act or failure to act on the part of HUCOM as evidenced by
-written documentation.
-      HUCOM further agrees not to make any use of the CONFIDENTIAL INFORMATION
-other than for the above-mentioned purpose(s) and will not disclose CONFIDENTIAL
-INFORMATION to any other person without the prior written consent of VASCO,
-except that if HUCOM is a corporation, CONFIDENTIAL INFORMATION may be disclosed
-to a person within the company on a need-to-know basis. If no satisfactory
-arrangement is concluded between the parties, or if otherwise requested by
-VASCO, HUCOM agrees to return to VASCO any written disclosure of CONFIDENTIAL
-INFORMATION provided by VASCO plus any copies, notes, summaries or other
-materials derived from the CONFIDENTIAL INFORMATION.
-      With respect to the subject matter set forth above, this Agreement
-constitutes the entire agreement between the parties and supersedes any previous
-oral or written representations, understandings or agreements as to the above
-subject matter.
-VASCO DATA SECURITY, INC.               HUCOM, INC.
-T. Kendall Hunt                         Hideaki Sato
-------------------------------          ------------------------------
-NAME                                    NAME
-Chief Executive Officer                 CEO & President
-------------------------------          ------------------------------
-TITLE                                   TITLE
-/s/ T. Kendall Hunt                     /s/ Hideaki Sato
-------------------------------          ------------------------------
-SIGNATURE                               SIGNATURE
-6/3/97                                  6/3/97
-------------------------------          ------------------------------
-DATE                                    DATE

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-QuickLinks
- -- Click here to rapidly navigate through this document
-Exhibit 99(d)(5)
-MUTUAL CONFIDENTIALITY AND
-NON-DISCLOSURE AGREEMENT
-        This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this            day of March, 2002, and
-effective as of
-February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation
-("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022.
-W I T N E S S E T H:
-        WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the
-Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies
-(collectively, the "Evaluation Material").
-        NOW,
-THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the
-Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers,
-attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof):
-        (1)  The
-Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly
-detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"),
-such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and
-professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of
-evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the
-Evaluation Material or any portion thereof to
-any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing
-party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its
-Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such
-party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with
-the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees
-to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that
-confidential treatment will be accorded such Evaluation Material.
-        (2)  The
-term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the
-public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for
-MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a
-source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the
-information pertains, or (iii) was in
-the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any
-obligation or duty owed to the party with respect to whom the information pertains.
-        (3)  If
-a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of
-the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it
-or for its use containing or reflecting any Evaluation Material.
-        (4)  Without
-the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the
-investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party
-or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002.
-The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual.
-The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws.
-        (5)  It
-is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding
-the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or
-questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M.
-Saferin or Kenneth M. Przysiecki.
-        (6)  Each
-party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the
-Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any
-other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive
-Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect.
-        (7)  Each
-party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a
-Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other
-party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive
-Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed
-and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or
-oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement"
-does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each
-party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole
-discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers
-2
-and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against
-the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the
-parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of
-the party which is sought to be bound, which consent shall specifically make such waiver or amendment.
-        (8)  Each
-party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions
-of this Agreement, in addition to all other remedies available to the other part at law or in equity.
-        (9)  It
-is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor
-will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
-        This
-Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this
-Agreement will expire three (3) years from the date of this Agreement.
-        IN
-WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above.
-SCIENTIFIC GAMES CORPORATION
-By:
-/s/  MARTIN E. SCHLOSS
-Name:
-Martin E. Schloss
-Title:
-Vice President
-MDI ENTERTAINMENT, INC.
-By:
-/s/  STEVEN M. SAFERIN
-Name:
-Steven M. Saferin
-Title:
-Chief Executive Officer
-3
-QuickLinks
-Exhibit 99(d)(5)

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-Non-Disclosure Agreement dated as of October 7, 2011
-Exhibit 99.2  STRICTLY CONFIDENTIAL  October 7, 2011
-Russian Standard Vodka  Pulkovskoye Shosse,
-46/2,  Saint-Petersburg,  196140,
-Russia
-Attention:
-Ilya Blinov
-General Manager
-Russian Standard Vodka
- Dear Mr. Blinov:  CONFIDENTIALITY AGREEMENT  This Confidentiality Agreement (this
-“Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the
-“Company”).  1. Confidential Information; Representatives. (a) The Receiving Party has indicated
-interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and
-prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees,
-agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential
-cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of
-the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.  (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to
-the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans,
-compilations, studies, data, reports, interpretations, projections, forecasts,
-  1
-records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise
-reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with
-Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the
-Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the
-Receiving Party prior to the execution and delivery of this Agreement.  2. Excluded Information. The Confidential
-Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its
-Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of
-confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement.
-3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its
-Representatives to, keep the Confidential Information in confidence 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 to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who
-reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach
-of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.  (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to
-divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not
-based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed
-by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.
-  2
-4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of
-the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that
-any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the
-Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company.
-5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if
-any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers.
-employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving
-Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty,
-express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s
-Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those representations and warranties (if any) that are
-included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal
-effect.  6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party
-will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a
-substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their
-confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies.
-7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it
-discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another
-governmental agency or as
-  3
-otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms
-and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required,
-furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with
-the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will
-be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the
-Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its
-affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information.
-8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company
-with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation 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.  9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each
-party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this
-Agreement.  10. Communications. Without the Company’s prior written consent, which may be withheld
-by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than
-contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the
-parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to
-communication with the Chief Executive Officer of the Company Bill Carey.
-  4
-11. Securities Laws. The Receiving Party acknowledges that it is aware and that the
-Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that 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. Notwithstanding the foregoing or anything to the contrary in this Agreement,
-the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of
-its affiliates or subsidiaries.  12. Entire Agreement; Amendments. This Agreement represents the entire understanding
-and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this
-Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.  13. No Waiver. 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.  14. Governing Law.
-This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and
-submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or
-document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably
-and unconditionally waive 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 New York; and (d) irrevocably and
-unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum.  15. Expenses. In the event of litigation
-relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has
-incurred in connection with such litigation, including any appeal therefrom.
-  5
-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 multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement.
-18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.
- [Remainder of Page Intentionally Left Blank]
-  6
-IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first
-written above.
-CENTRAL EUROPEAN DISTRIBUTION CORPORATION
-By:
- /s/ Christopher Biedermann
-Name:
-Christopher Biedermann
-Title:
-CFO
-Russian Standard Vodka
-By:
- /s/ Ilya Blinov
-Name:
-Ilya Blinov
-Title:
-General Manager
-  7

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-Exhibit (d)(3)
-CONFIDENTIALITY, NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
-This Confidentiality & Non-Disclosure Agreement (“Agreement”) is made and entered into as of May 1, 2013 (“Effective Date”), by and between Verenium Corporation, a Delaware corporation located at 3550 John Hopkins Court, San Diego, CA 92121 (“Verenium”), and BASF Corporation, a Delaware corporation with a principal address at 100 Campus Drive, Florham Park, New Jersey 07932 (for notice purposes, Attention: General Counsel)  (including its Affiliates, “Company”), individually known as a “Party” and collectively known as the “Parties”.
-Verenium intends to disclose to Company certain of its Confidential Information as Verenium deems necessary in order for the Company to evaluate a potential transaction of mutual interest (the “Purpose”).  In consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
-1.              “Confidential Information” shall mean the Purpose (including the contemplated transaction), identity of, and any discussions or negotiations between, the Parties, existence of this Agreement, and any and all information whether in oral, written, graphic or electronic form, including but not limited to, data, know-how and any and all subject matter (whether patentable or not, including without limitation any derivatives thereof) pertaining to Verenium’s research, financial data, sales information, inventions, development, materials, technology, trade secrets, work in process, marketing, business plans, regulatory information and strategies, scientific, engineering and/or manufacturing processes or equipment, protocols, assays, strains, compounds, genes, gene pathways, enzymes, peptides, the commercial applications of genes, gene pathways, enzymes, peptides, accessing microbial diversity, manipulating and modifying genes and gene pathways, identifying bioactive compounds through recombinant techniques and any other elements of Verenium’s business which Verenium considers to be of value, including its present or future products, projections, sales, pricing, customers, employees, investors and contractual relationships.
-2.              Subject to the provisions of paragraphs 3 and 4 of this Agreement, (i) Company, as recipient of Confidential Information from or on behalf of Verenium, shall use such Confidential Information solely for the Purpose and for no other purpose or use, and (ii) Company shall not disclose to any third party any Confidential Information received from or on behalf of Verenium hereunder.  Upon discovery of any loss or unauthorized disclosure of Confidential Information, Company shall immediately notify Verenium.
-3.              Company agrees to treat Confidential Information received from or on behalf of Verenium, with at least the same degree of care that Company uses to protect its own Confidential Information. Company shall only disseminate Confidential Information to such of its Representatives with a special need to know for carrying out the Purpose of this Agreement.  In addition, Company hereby agrees that such Representatives shall be informed of the confidential and proprietary nature of the Confidential Information received and that such Representatives shall be bound by the terms hereof or subject to confidentiality and non-use obligations no less restrictive than those set forth herein.  Company shall be liable for any disclosure or use of the Confidential Information by its Representatives in a manner not authorized by this Agreement.  “Representative” means any employee, consultant, contractor, officer, agent, advisor, and/or director of a Party.  “Affiliate” for purposes of this Agreement shall mean any one or more business entities which are: (a) owned or controlled by, (b) owning or controlling, or (c) under common control with a Party at the time in question.  Ownership, direct or indirect, of more than fifty percent (50%) of the voting stock or other equity interests of an entity ordinarily entitled to vote in the election of directors or similar governing body of an entity shall, without limitation, constitute ownership or control thereof.
-4.              The Company shall have no obligations to Verenium with respect to the use of such information, or disclosure to others not party to this Agreement, of such information which:  (a) prior to disclosure was rightfully known to or in the possession of Company as evidenced by Company’s competent written records and not subject to any confidentiality or non-disclosure obligations or restrictions; (b) is or becomes publicly known during the time period in which Company’s duties and obligations hereunder extend, through no fault, unauthorized act or omission of Company or its Representatives; (c) was provided without restriction on disclosure by a third party who had the lawful right to make such disclosure and where such disclosure was not in violation of any obligation, contractual or otherwise, owed by such third party to Verenium; (d) is rightfully and in good faith developed by Company independently of any disclosures made under this Agreement, as evidenced by Company’s competent written records; or (e) is required by applicable law, regulation or bona fide legal process to be disclosed by Company, provided, however, that Company takes all reasonable steps to restrict and maintain the confidentiality of such disclosure (including, without limitation, seeking a protective order or confidential treatment thereof, as the case may be), and provides reasonable prior written notice to Verenium of the requirement to disclose such information and the specific disclosure(s) proposed to satisfy such law(s), regulation(s) or legal process(es).
-5.              Confidential Information shall not be reproduced by Company in any form except as required to accomplish the intent of this Agreement.  Any reproduction of any Confidential Information by Company shall remain the property of Verenium unless otherwise authorized in writing by Verenium.
-1
-6.              Company agrees, upon request, to promptly return or destroy all items relating to Confidential Information, including but not limited to, all materials, written materials, drawings, data and records provided or otherwise made available by Verenium, and all copies (in any form) thereof, with a certificate of compliance with the foregoing, executed by an appropriate officer of Company within 30 days of such request, provided that the Company may maintain a single copy of such Confidential Information within its Legal Department for archival purposes.  Notwithstanding the return or destruction of Confidential Information, Company and its Representatives shall continue to be bound by the obligations hereof.
-7.              All right, title and interest in and to Confidential Information shall be retained by Verenium and nothing in this Agreement shall be construed as granting any license or right under any patent or other intellectual property rights, or other rights, or representing any commitment by either Party to enter into any additional agreement, by implication or otherwise, or creating any partnership, joint venture or agency relationship. All Confidential Information provided hereunder is provided “AS IS” and without any warranty, express, implied, or otherwise, regarding its accuracy or performance.  Verenium shall have no liability to Company of any nature or kind whatsoever, directly or indirectly, resulting from or arising out of the reliance or use by Company of any Confidential Information.
-8.              Company acknowledges that it is aware, and will advise its Representatives who are informed of the Purpose or who review Confidential Information, of the restrictions imposed by the United States securities laws on the purchase or sale of Verenium’s securities by any person who has received material, non-public information about Verenium and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.
-9.              During the one-year period commencing on the date of this Agreement (the “Standstill Period”), neither the Company nor any of its Representatives will, in any manner, directly or indirectly (except to the extent agreed by Verenium): (a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Verenium or any securities of any subsidiary or other Affiliate of Verenium, in excess of five (5) percent of the outstanding securities of any such company (with any such acquisition, regardless of size, only being made at such time as neither the acquiring party nor any of its Affiliates is in possession of material, non-public information about Verenium), (ii) any acquisition of any assets of Verenium or any assets of any subsidiary or other Affiliate of Verenium, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Verenium or any subsidiary or other Affiliate of Verenium, or involving any securities or assets of Verenium or any securities or assets of any subsidiary or other Affiliate of Verenium, 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 Verenium; (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 Verenium; (c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Verenium; (d) take any action that might require Verenium to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; (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 sentence; (f) assist, induce or encourage any other person or entity to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence; or (g) enter into any discussions, negotiations, arrangement or agreement with any other person or entity relating to any of the foregoing.  The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.  Notwithstanding the foregoing, (i) the Company and its Representatives shall not be precluded from submitting a topping or other offer or otherwise participating in any process not initiated by the Company or its Affiliates or Representatives in which the securities or assets of Verenium or any subsidiary or other Affiliate of Verenium are for sale or are being or have been sold, and (ii) upon filing for protection under US Bankruptcy laws by Verenium or any subsidiary or Affiliate of Verenium the restrictions of this paragraph 9 shall be void and of no further force or effect with respect to the filing entity.
-10.       This Agreement shall constitute the entire understanding between the Parties with respect to the subject matter hereof and may be modified only in writing and signed by both Parties; provided, however, that any restrictions set forth on the Company or its Affiliates in any previous confidentiality or non-disclosure agreements between the Parties or their Affiliates shall remain in place for the periods set forth in any such agreements.  If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.  This Agreement, and rights and obligations hereunder, shall not be assigned.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, assigns, personal representatives, executors and administrators.
-11.       Company acknowledges that its breach of this Agreement will cause irreparable damage to Verenium and hereby agrees that Verenium shall be entitled to injunctive relief under this Agreement for such breach or threatened breach as well as such further relief as may be granted by a court of competent jurisdiction.
-12.       This Agreement shall commence as of the Effective Date and shall terminate one (1) year thereafter, unless earlier terminated upon 30 days written notice to the other Party; provided, however, that the duties set forth in paragraphs 9 and 13 shall survive for the
-2
-periods set forth in paragraphs 9 and 13 and the Company’s duties and obligations to protect Confidential Information disclosed during the term (or any extension) of this Agreement shall survive the termination or expiration of this Agreement for a period of five (5) years.  Notwithstanding the foregoing, Company’s duties and obligations to protect a trade secret disclosed hereunder shall survive the termination or expiration of this Agreement indefinitely.
-13.       During the one-year period commencing on the date of this Agreement (the “Non-Solicitation Period”), Company shall not, nor shall it permit its Affiliates or Representatives, to: (a) hire any employee of Verenium or enter into a contract with any employee of Verenium to provide services to Company (or any of its Affiliates), in each case involving an employee of Verenium with whom Company has contact as a result of this Agreement or discussions relating to a possible transaction between the Parties, without obtaining the prior written approval of Verenium, or (b) directly or indirectly, induce or attempt to induce or otherwise solicit, counsel, discuss, advise or encourage any such employee to leave or otherwise terminate such employee’s relationship with Verenium; provided, however, that the foregoing provisions of this paragraph 13 shall not apply to any employee of Verenium who was previously terminated by Verenium or who responds to a general solicitation or advertisement regarding employment with Company or its Affiliates.  The expiration of the Non-Solicitation Period will not terminate or otherwise affect any of the other provisions of this Agreement.
-14.       All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic or facsimile transmission.  Notices shall be sent to the addresses set forth at the beginning of this Agreement or such other address as a Party may specify in writing to the other Party.  Each Party represents and warrants that it has the authority to undertake the obligations set forth in this Agreement without breaching or violating any contractual or statutory obligation owed to another.  This Agreement shall be construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
-ACCEPTED AND AGREED as of the date first written above.
-BASF   CORPORATION
-Verenium   Corporation
-By:
-/s/   Fried-Walter Münstermann
-By:
-/s/   Jeffrey G. Black
-(signature)
-(signature)
-Name:
-Fried-Walter   Münstermann
-Name:
-Jeffrey   G. Black
-Title:
-Executive   Vice President and Chief Financial Officer
-Title:
-Chief   Financial Officer
-3

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-<PAGE>
-                     NON-CIRCUMVENTION & NON-DISCLOSURE AGREEMENT
-This is to confirm that each of the named signatories, separately and
-individually and their associates hereby agree that his/her corporation(s),
-division(s), employees, agents and/or consultants will not disclose, make
-contact with or otherwise be involved in any transaction involving that certain
-proprietary information and/or client(s), merchant(s), customer(s) has been
-disclosed by the following companies;
-Consumers On-Line Development Group, Inc.,                  C.O.L.D.
-Consumer Net Partners                                       C.N.P.
-Consumer Net Marketplace                                    C.N.M.
-CNM Network                                                 C.N.M.N.
-SportCenter Partners                                        S.C.P.
-SportCenter On-Line                                         S.C.O.L.
-hereinafter referred to as the "THE COMPANIES", which is hereby made a part
-hereto this agreement, without the express approval of THE COMPANIES.  I/we
-further agree that in consideration of that certain information of this
-agreement that I/we fully agree to hold all information confidential and that
-such information will remain the express property of THE COMPANIES.
-It is understood that this agreement is a reciprocal one between the signatories
-concerning the exchange of privileged information and contacts and will be held
-as confidential unless otherwise released or agreed as to the release only in
-written documentation by THE COMPANIES.
-It is also understood that a signatory cannot be considered or adjudged to be in
-violation of this agreement when the violation is involuntary, due to the
-situations beyond his/her control: examples being acts of GOD and/or civil
-disturbances.  Essentially, the spirit behind this agreement is one of mutual
-trust and confidence, and one of reliance on each other to do what is fair and
-equitable.
-It is agreed that any disputes that result between the parties whose signatures
-appear below shall be submitted to arbitration in accordance with The State of
-California Code of Procedure.  The written determination of the arbitration
-shall be final, binding, and conclusive on the parties.
-If either party sues the other party to enforce any of the terms of this
-agreement, the prevailing party shall, in addition to all other damages, be
-entitled to recover any and all legal fees incurred.
-IN REPRESENTATION OF:
-                         -------------------------     -------------------------
-THE COMPANIES            FREDRICK J. RICE
-IN REPRESENTATION OF:
-                         -------------------------     -------------------------
-                                                       DATE
-* All parties hereto of this agreement for any and all international rules and
-or laws governing Non-Circumvention as to this agreement.

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-                             Confidential Draft
-                                 ADDENDUM A
-                  MUTUAL NONDISCLOSURE AGREEMENT (page 2.)
-B.  GENERAL
-1.  Either party may terminate this MNDA without cause upon five (5) days
-    written notice given to the other, provided that confidentiality obligations
-    under Section A of this Attachment A shall survive termination hereof.
-2.  No rights or obligations other than expressly recited herein are to be
-    implied here from. Nothing except that expressly stated herein shall
-    affect either party's present or prospective rights under any country's
-    patent laws, or be construed as granting any license under any present or
-    future patent or application therefor, or preclude marketing any product
-    unless such marketing constitutes unauthorized disclosure of INFORMATION.
-3.  This MNDA shall be construed, interpreted and applied in accordance with the
-    laws of the Commonwealth of Massachusetts.
-4.  Consistent with other provisions herein, each party assures that it will
-    not knowingly, without obtaining prior authorization from the U.S. Dept.
-    of Commerce Office of Export Administration, transmit directly or
-    indirectly the technical data received pursuant hereto or the immediate
-    product (including processes and services) produced directly by use of
-    such technical data to Afghanistan, People's Republic of China, or any
-    other Country Group Q, S, W, T, or Z country specified in Supplement No. I
-    to Part 370 of U.S. Dept. of Commerce Export Administration Regulations.
-5.  This document and appendices contain the entire agreement between the
-    Parties and supersede any previous oral or written understandings,
-    commitments or agreements pertaining to the subject matter hereof. This
-    MNDA shall not be modified or changed in any manner except in a writing
-    signed by both parties. If a court of competent jurisdiction finds any of
-    the provisions hereto so over-broad as to be unenforceable, such
-    provisions may be reduced in scope by the court to the extent it deems
-    necessary to render the provision reasonable and enforceable.
-IN WITNESS WHEREOF, the Parties have caused this MDNA to be executed as of this
-9th day of December __, 1996.
-DIGITAL EQUIPMENT CORPORATION                TERAYON Corporation
------------------------------                -----------------------------
-Signed                                       Signed
------------------------------                Jacob Tanz
-Typed Name                                   Typed Name
------------------------------                Vice President, Marketing
-Title                                        Title

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-                                                                      ADDENDUM B
-                    NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT
-This agreement is effective as of March 10, 1997 by and between Delta Steel,
-Inc., a Texas corporation, hereafter referred to as "Delta" or "party", and FWT,
-Inc., a Texas corporation, hereafter referred to as "FWT" or "party".
-WITNESSETH:
-1.0   Both parties understand the nature and character of this Agreement, and
-intend for this to be a fully binding agreement. The parties may use all legal
-means at their disposal to enforce this Agreement. Reference to Delta and FWT
-includes any subsidiary, affiliated or parent companies, and the directors,
-officers, employees, agents, representatives and contractors of the respective
-companies.
-1.1   "Period of Affiliation", as used below, refers to the period of the
-business relationship between the parties under the Cooperative Production
-Agreement dated March 10, 1997.
-1.2   Consideration for compliance with this Agreement is the opportunity to
-work under the aforementioned Cooperative Production Agreement and any
-remuneration in any form agreed to by the parties. This Agreement is intended to
-extend beyond the Period of Affiliation.
-2.0   Both parties agree that its representatives and employees will not at any
-time, either during or subsequent to the Period of Affiliation, either directly
-or indirectly, disclose to others or use any secret, confidential or proprietary
-information and know-how of the other party (whether or not developed by the
-other party) without that party's written consent. The term "secret,
-confidential or proprietary information and know-how" shall include, but shall
-not be limited to, company plans, customers, costs, programs, prices, computer
-programs and methods used, developed, investigated, made or sold, at any time,
-either before or during the parties' Period of Affiliation.
-2.1   Salary and compensation information is considered confidential and
-proprietary information, and is fully subject to the disclosure restrictions of
-this Agreement.
-3.0   The rights and obligations of the parties hereto shall be construed under
-the laws of the State of Texas and shall be binding upon the heirs, legal
-representatives and assigns with respect to the subject matter thereof. No
-changes to this Agreement shall be effective unless made in writing and executed
-by both parties.
-DELTA STEEL, INC.                       FWT, Inc.
-P.O. Box 2289                           P.O. Box 8597
-Houston, TX 77252                       Fort Worth, TX 76124
-BY: /s/ R. A. EMBRY                     BY: /s/ T. W. MOORE
-   -----------------------                 --------------------------
-TITLE: PRESIDENT                        TITLE: PRESIDENT
-      --------------------                    -----------------------
-DATE: 3/10/97                           DATE: 3/31/97
-     ---------------------                   ------------------------

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-Exhibit 10.5
-NON-COMPETE, NON-SOLICITATION
-AND CONFIDENTIALITY AGREEMENT
-THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY
-AGREEMENT (this “Agreement”) is entered into this 8th day of February, 2007, by and among Heritage
-Commerce Corp, a California Corporation (“Heritage”), Heritage Bank of
-Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”).
-WHEREAS, concurrently with the execution of this
-Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered
-into that certain Agreement and Plan of Merger (the “Merger Agreement”)
-dated as of February 8, 2007 whereby on the Effective Date (as defined in
-the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive
-the merger (the “Merger”).
-WHEREAS, Shareholder is the President and Chief
-Executive Officer of Diablo and beneficially owns approximately 5.77% of the
-issued and outstanding shares of Diablo common stock;
-WHEREAS, Shareholder acknowledges that the execution
-and delivery of this Agreement by Shareholder is a condition precedent to the
-obligations of the parties entering into the Merger Agreement and the
-consummation of the Merger, and Shareholder acknowledges and agrees that
-Heritage, HBC and Diablo would not proceed forward and consummate the transactions
-contemplated under the Merger Agreement unless Shareholder enters into this
-Agreement;
-WHEREAS, Heritage, HBC and Shareholder acknowledge
-that the covenants and agreements of Shareholder contained in this Agreement
-are necessary to protect and preserve Diablo’s business for the benefit of
-Heritage and HBC after consummation of the transactions contemplated by the Merger
-Agreement;
-WHEREAS, Shareholder has significant knowledge and
-information concerning the business of Diablo and that such business is very
-competitive;
-WHEREAS, Shareholder will receive significant
-consideration for the Shareholder’s exchange of his Diablo common stock through
-the Merger;
-WHEREAS, HBC has agreed to provide Shareholder with a
-three year employment agreement pursuant to which Shareholder will become an
-Executive Vice President of HBC on the Effective Date (as defined herein);
-WHEREAS, this Agreement shall become effective at the
-Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective
-Date”);
-NOW, THEREFORE, in consideration of the promises and
-covenants contained herein and for other good and valuable consideration, the
-receipt, sufficiency and adequacy of which are mutually acknowledged by each
-party, it is agreed as follows:
-1.             Definitions.  Capitalized terms used in this Agreement not
-otherwise defined have the meaning given such term in the Merger Agreement.  For purposes of this Agreement, the term “Business”
-means the business of banking (including, without limitation, the acceptance of
-deposits and the making of loans) as conducted by state chartered banks,
-nationally chartered banks or office of thrift supervision chartered
-institutions conducting business in the state of California (a) to be
-undertaken in the formation of a new banking organization or (b) engaged
-in by an existing banking organization with $1 billon or less of assets.
-2.             Purpose.  Shareholder acknowledges and agrees that the
-market for the Business is very competitive within the Restrictive Territory
-(as defined herein), and one way that Diablo maintained its business and its
-competitive position in the marketplace prior to the Closing was by investing
-time and money in developing proprietary products, unique approaches to the
-business, banking systems and strong client, vendor, and employee
-relationships.  Shareholder further
-acknowledges and agrees that proprietary and other information related to such
-1
-products, approaches and
-relationships are highly confidential, and maintaining that confidentiality is
-critical to Diablo’s success.
-Shareholder further acknowledges and agrees that Diablo has invested
-substantial time and resources into developing relationships, customer lists
-and business models and strategies and that disruption of such relationships or
-misuse of such lists, models, and strategies would damage Heritage and HBC.
-3.             Shareholder
-Covenants.
-(a)           Non-Competition.  Shareholder hereby covenants and agrees that
-from the Effective Date until the third (3rd) anniversary of the Effective Date (“Restricted Period”),
-Shareholder will not without the prior written consent of Heritage, engage or
-participate or have any interest, directly or indirectly, in any Business
-anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin,
-San Francisco and San Mateo located in the State of California (“Restricted
-Territory”) (all such entities shall be referred to each as “Competitor” or
-collectively as “Competitors,”), with respect to the following acts:  (i) own any equity interest in any
-Competitor; (ii) operate, join, control, advise, become a founder or
-otherwise participate in any Competitor; (iii) lend credit or money for the
-purpose of assisting another to establish or operate any Competitor; (iv)
-request or advise any customer, strategic partner or vendor of Diablo that
-becomes a present or future customer, strategic partner or vendor of Heritage,
-HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated
-Companies”) to withdraw, curtail or cancel its business with Heritage, HBC
-or the Affiliated Companies anywhere in the Restricted Territory;
-(v) induce or influence (or attempt to induce or influence) any person or
-entity who is engaged (as an employee, agent, independent contractor or
-otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her
-or its employment or engagement for the purpose of obtaining employment with a
-Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated
-Companies to leave employment and become affiliated with any Competitor; (vii)
-solicit any actual or “prospective customer” (as hereinafter defined), which
-was served by Diablo in connection with any business of Diablo, or (viii)
-solicit, influence or attempt to influence any customer which is or was served
-by Diablo to discontinue its business or service available from Heritage, HBC
-or the Affiliated Companies; provided, that, Shareholder may own
-and hold as an investment of up to 1% of any corporation within the Restricted
-Territory that is listed on a national stock exchange and that is engaged in a
-business that is competitive with Heritage, HBC or an Affiliated Company, but
-Shareholder may not otherwise participate (whether in management or otherwise)
-in such corporation.  A “prospective
-customer” shall mean a company, person or other entity with which
-Shareholder knows, or reasonably should know, that Diablo has had actual
-contact with or has begun formulating a targeted strategy for contact at any
-time during the term of this Agreement in connection with the operation of the
-Business.  “Engaged in business”
-shall include, without limitation, establishment of goodwill or business
-reputation, maintenance of business assets and properties, and dealings with
-customers, strategic partners, prospective customers, suppliers, or vendors.
-(b)           Confidentiality.  Shareholder acknowledges and agrees that the
-Shareholder has occupied a position of trust and confidence with Diablo prior
-to the date hereof and has had access to and has become familiar with the
-following, any and all of which constitutes confidential information of Diablo
-(collectively “Confidential Information”) (a) any and all proprietary intellectual
-property or trade secrets concerning the business and affairs of Diablo,
-product specifications, data, know-how, formulae, compositions, processes,
-designs, graphs, drawings, samples, inventions and ideas, past, current and
-planned research and development, customer lists, current and anticipated
-customer requirements, price lists, market studies, business plans, computer
-software and programs (including object code and source code), database
-technologies, systems, structures, architectures, processes, improvements,
-devices, know-how, discoveries, concepts, methods, information of Diablo and
-any other information, however documented, of Diablo that is a trade secret
-within the meaning of any applicable law; (b) any and all proprietary non-public
-information concerning the business and affairs of Diablo (which includes any
-historical financial statements, financial projections, and budgets, historical
-and projected sales, capital spending budgets and plans, the names and
-backgrounds of key personnel, contractors, agents, suppliers, personnel
-training, techniques and materials, manufacturing methods, designs and
-techniques, purchasing methods and techniques, however documented; and
-(c) any and all notes, analyses, compilations, studies, summaries and
-other material prepared by or for Diablo containing or based, in whole or part,
-upon any information included in the foregoing.
-Shareholder acknowledges and agrees that the
-protection of the Confidential Information is necessary to protect and preserve
-the value of Diablo’s business and proprietary properties being acquired by
-Heritage and HBC.  Therefore, Shareholder
-hereby agrees not to, at any time, disclose to any unauthorized Persons or use
-for his or its own account or for the benefit of any third party any
-Confidential Information, whether or not such information is
-2
-embodied in writing or other physical form or is
-retained in the memory of Shareholder, without Heritage’s written consent,
-unless and to the extent that the Confidential Information is or becomes
-generally known to and available for use by the public other than as a result
-of Shareholder’s fault or the fault of any other Person bound by a duty of
-confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder
-agrees to deliver to Heritage at the Effective Date, and at any other time
-Heritage may request, all documents, memoranda, notes, plans, records, reports
-and other documentation, models, components, devices or computer software,
-whether embodied in a disk or in other form (and all copies of all of the
-foregoing), that contain Confidential Information and any other Confidential
-Information that Shareholder may then possess or have under Shareholder’s
-control.
-(c)           Breach.  Shareholder, Heritage and HBC each recognize
-and acknowledge that the Confidential Information and other knowledge
-Shareholder has about Diablo and has and will obtain from Heritage, HBC or the
-Affiliated Companies is special and unique, and any violation of the covenants
-contained in this Agreement is likely to cause irreparable damage to Heritage,
-HBC or the Affiliated Companies.
-Therefore, the parties agree that, upon any breach of any covenant
-contained in this Section 3 by Shareholder, Heritage and HBC shall be
-entitled to an appropriate injunction for a violation of such covenant,
-threatened or actual, of such covenant, in addition to all other relief
-available under applicable law.  If a court
-or arbitrator has determined that Shareholder has committed a breach by
-Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted
-Period will be extended by the period of the duration of such breach.
-(d)           Acknowledgment.  Shareholder acknowledges and agrees that the
-restrictions set forth in this Section 3 are reasonable in scope and
-essential to the preservation of Diablo’s business and proprietary properties
-and that enforcement of these restrictions will not cause Shareholder any
-hardship, and because of Shareholder’s background and experience, will not in
-any manner preclude Shareholder from becoming gainfully employed in such a
-manner and to such an extent as will provide a standard of living for
-Shareholder and the members of Shareholder’s family of at least the sort and
-fashion to which they have become accustomed.
-Each of Heritage, HBC and Shareholder acknowledges and agrees that the
-covenants and agreements contained in this Section 3 have been negotiated
-in good faith by each of them.  Each of
-Heritage, HBC and Shareholder further acknowledges that (i) the goodwill
-associated with the existing vendors, customers, assets and employees of Diablo
-prior to the transactions contemplated herein is an integral component of the
-value of Diablo to Heritage and HBC and is reflected in the consideration to be
-received by Diablo shareholders, including the Shareholder pursuant to this
-Agreement, and (ii) the covenants and agreements contained in this
-Section 3 are necessary to preserve the value of Diablo’s business and
-proprietary properties for Heritage and HBC following the transaction.  Each of Heritage, HBC and Shareholder
-acknowledges that the limitations of time, geography and scope of activity
-agreed to in Section 3 are reasonable because, among other things:  (A) Heritage, HBC and Diablo are engaged
-in a highly competitive industry and have their operations in the Restricted
-Territory, (B) Shareholder had unique access to, and will continue to have
-access to, Confidential Information, including trade secrets, and know-how of Diablo
-and its business and proprietary properties, (C) Shareholder is receiving
-significant consideration in connection with the transactions contemplated by
-the Merger Agreement and this Agreement, and (D) this Agreement provides
-no more protection than is necessary to protect Heritage’s and HBC’s interest
-in the goodwill of Diablo and its business and proprietary properties,
-Confidential Information and Diablo, Heritage and HBC trade secrets.
-(e)           No Disparagement.  Shareholder will not, directly or indirectly,
-disparage Heritage and HBC, the business formerly conducted by Diablo, the
-business conducted by Heritage and HBC or any shareholder, director, officer,
-employee or agent of Heritage or HBC;
-(f)            Future Employer.  Shareholder will, during the Restrictive
-Period, within ten days after accepting any employment, consulting engagement,
-engagement as an independent contractor, partnership or other association that
-might reasonably involve the Business, advise Heritage of the identity of the
-new employer, client, partner or other Person with whom Shareholder has become
-associated.  Following receipt of such
-notice, if Heritage in its reasonable judgment determines that Shareholder’s
-proposed association involves a Person engaged in the Business, Heritage may
-serve notice upon each such Person that such Shareholder is bound by this
-Agreement and furnish each such Person with a copy of this Agreement or
-relevant portions thereof.
-(g)           Separate Agreement.  The covenants of Shareholder contained in
-this Section 3 shall each be construed independently of any other
-provision in this Agreement, and the existence of any claim or cause of
-3
-action of Shareholder
-against Heritage or HBC whether predicated on this Agreement or otherwise,
-shall not constitute a defense to the enforcement by Heritage or HBC of such
-covenants.
-(h)           Survival of
-Covenants.  The covenants contained
-in this Section 3 shall survive the termination of this Agreement by
-either party hereto in accordance with the provisions of this Section 3.
-4.             Conflict.  Shareholder represents and warrants to
-Heritage and HBC that Shareholder has not executed any written agreement with
-any other person or entity that would prohibit Shareholder from entering into
-this Agreement.  Further, Shareholder
-represents and warrants to Heritage and HBC that the execution of this
-Agreement by Shareholder will not conflict with any obligations or duties which
-Shareholder may have to prior employers or pursuant to any other agreement.
-5.             Non-Disclosure of
-Agreement.  Shareholder shall not
-disclose the terms and provisions of this Agreement or any other document
-executed in connection herewith except to Shareholder’s lawyers, accountants,
-tax advisors and spouse or by law to any Person; provided that
-Shareholder may disclose the non-competition and confidentiality covenants
-contained in Section 3 of this Agreement to a prospective employer or
-business partner with the prior written consent of Heritage.
-6.             Successors and
-Assigns.  This Agreement will be
-binding upon Heritage and HBC and Shareholder and will inure to the benefit of
-Heritage and HBC and its affiliates, successors and assigns.
-7.             Waiver.  The rights and remedies of the parties to
-this Agreement are cumulative and not alternative. 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, in whole or in part, by a waiver or renunciation of the claim or
-right except in writing; (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 to 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 require the other party, to take further action without notice or
-demand as provided in this Agreement.
-8.             Governing Law.  This Agreement will be governed by the laws
-applied by courts of California to contracts entered into within that state by
-parties residing within that state and having no connection to any other state.
-9.             Jurisdiction;
-Service of Process.  Any proceeding
-arising out of or relating to this Agreement may be brought in the courts of
-the State of California, or, if it has or can acquire jurisdiction, in the
-United States District Court for the Northern District of California, and each
-of the parties irrevocably submits to the exclusive jurisdiction of each such
-court in any such proceeding, waives any objection it may now or hereafter have
-to venue or to convenience of forum, agrees that all claims in respect of the
-proceeding shall be heard and determined only in any such court and agrees not
-to bring any proceeding arising out of or relating to this Agreement in any
-other court.  The parties agree that
-either or both of them may file a copy of this paragraph with any court as
-written evidence of the knowing, voluntary and bargained agreement between the
-parties irrevocably to waive any objections to venue or to convenience of
-forum.  Process in any proceeding
-referred to in the first sentence of this section may be served on any party as
-required under California law.
-10.           Severability.  Whenever possible, each provision and term of
-this Agreement will be interpreted in a manner to be effective and valid, but
-if any provision or term of this Agreement is held to be prohibited or invalid,
-then such provision or term will be ineffective only to the extent of such
-prohibition or invalidity, without invalidating or affecting in any manner
-whatsoever the remainder of such provision or term or the remaining provisions
-or terms of this Agreement. If any of the covenants set forth in Section 3
-of this Agreement are held to be unreasonable, arbitrary or against public
-policy, such covenants will be considered divisible with respect to scope, time
-and geographic area, and in such lesser scope, time and geographic area, will
-be effective, binding and enforceable against Shareholder to the fullest extent
-under California law.
-4
-11.           Execution of
-Agreement.  This Agreement may be
-executed in one or more counterparts, each of which will be deemed to be an
-original copy of this Agreement and all of which, when taken together, will be
-deemed to constitute one and the same agreement.  The exchange of copies of this Agreement and
-of signature pages by facsimile transmission shall constitute effective
-execution and delivery of this Agreement as to the parties and may be used in
-lieu of the original Agreement for all purposes.  Signatures of the parties transmitted by
-facsimile shall be deemed to be their original signatures for all purposes.
-12.           Section Headings,
-Construction.  The headings of
-sections in this Agreement are provided for convenience only and will not
-affect its construction or interpretation. All references to “Section” or “Sections”
-refer to the corresponding Section or Sections of this Agreement unless
-otherwise specified. All words used in this Agreement will be construed to be
-of such gender or number as the circumstances require. Unless otherwise
-expressly provided, the word “Including” does not limit the preceding words or
-terms.
-13.           Notices.  All notices, consents, waivers and other
-communications under this Agreement must be in writing and will be deemed to
-have been duly given when (a) delivered by hand (with written confirmation of
-receipt); (b) sent by facsimile (with written confirmation of receipt); or (c)
-when received by the addressee, if sent by a nationally recognized overnight
-delivery service (receipt requested), in each case to the appropriate addresses
-and facsimile numbers set forth below (or to such other addresses and facsimile
-numbers as a party may designate by notice to the other parties):
-Shareholder:                                                                             James
-Mayer
-2596 Danville Blvd.
-Alamo, CA 94501
-with a copy to:                                                                 Dylan
-W. Wiseman
-Littler Mendelson
-2520 Venture Oaks Way, Suite 390
-Sacramento, CA
-Facsimile:  (916) 561-0828
-Heritage and HBC:               Heritage
-Commerce Corp
-150 Almaden Blvd.
-San Jose, California  95113
-Attn:  Walter T. Kaczmek
-Facsimile: (408) 534-4940
-With copy to:                                                                      Buchalter
-Nemer
-1000 Wilshire Boulevard
-Suite 1500
-Los Angeles, CA  90017-2457
-Attn:  Mark A. Bonenfant, Esq.
-Facsimile:  (213) 896-0400
-14.           Recitals.  The recitals are incorporated herein and made
-a part of this Agreement.
-15.           Entire Agreement.  This Agreement constitutes the entire
-agreement between the parties with respect to the subject matter of this
-Agreement and supersedes all prior written and oral agreements and
-understandings between the parties with respect to the subject matter of this
-Agreement.  This Agreement may not be
-amended except by a written agreement executed by the party to be charged with
-the amendment.
-[signature page follows]
-5
-IN WITNESS WHEREOF, the parties hereto have executed
-this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date
-first set forth above.
-HERITAGE COMMERCE CORP
-By:
-/s/ Walter T. Kaczmarek
-Walter T. Kaczmarek
-Chief Executive Officer
-HERITAGE
-  BANK OF COMMERCE
-By:
-/s/.Walter T. Kaczmarek
-Walter T. Kaczmarek
-President
-SHAREHOLDER
-/s/ James Mayer
-James Mayer
-6

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-Exhibit (d)(2)
-NON-DISCLOSURE AGREEMENT
-This Non-Disclosure Agreement (the “Agreement”)
-is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having
-its corporate address at:  100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass
-Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”),
-either both of which may be hereinafter referred to as "the Party" or "the Parties."
-WHEREAS
-The Parties desire to discuss certain business
-transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the
-Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle
-each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in
-order for the Parties to receive from each other, either orally or in writing, certain technical and business information under
-terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement.
-NOW THEREFORE, THE PARTIES AGREE AS
-FOLLOWS;
-1.The Definition of "Confidential Information": The term "Confidential Information"
-shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and
-whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's
-principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements,
-inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice
-by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including,
-without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their
-parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes,
-advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic
-alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information,
-customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential
-and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other).
-2.Protection of "Confidential Information": In consideration of each Party's disclosure
-of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the
-other Party, that it:
-(a)shall maintain such Confidential Information in the strictest confidence;
-Pareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United StatesTel. +1 (212) 984.1096www.Pareteum.comNYSE MKT: TEUM
-(b)shall not disclose, transfer or otherwise make available any of such Confidential Information to
-any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion
-to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent
-from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions
-regarding the Confidential Information; and
-(c)shall not directly, indirectly or in concert with any person, use the Confidential Information
-for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction.
-Each Party shall take reasonable
-measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to
-protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to
-a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom
-such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.
-3.Excluded Information: This Agreement shall not apply to any information:
-(a)that has been or which becomes publicly known, through no wrongful act of either Party;
-(b)which is required to be disclosed in order to comply with applicable law or regulation or with
-any requirement imposed by judicial or administrative process or any governmental or court order.
-4.No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto
-shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing
-Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as
-may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes
-valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY
-MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF
-ITS CONFIDENTIAL INFORMATION.
-5.Remedies: If either Party causes a disclosure of the other Party’s Confidential Information
-in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other
-Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages
-suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing
-Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each
-Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information
-shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult
-to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any
-breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law,
-including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened
-breach or attempted breach.
-6.Return of "Confidential Information": All Confidential Information shall be returned
-to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the
-Confidential Information shall certify said information has been destroyed and is no longer useable in any format.
-Pareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United StatesTel. +1 (212) 984.1096www.Pareteum.comNYSE MKT: TEUM
-7.Securities: Parties hereby acknowledge, covenant and agree that they are aware that United
-States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from
-purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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.
-8.Prohibition of Disclosure: Neither Party hereto
-shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including,
-but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this
-Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided
-pursuant to this Agreement, without first obtaining the prior written consent of the other Party.
-9.Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual
-written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections
-2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either
-termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable
-or otherwise transferable by either Party.
-10.Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance
-with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the
-undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby
-submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan,
-New York, New York.
-11.Waiver: No failure by either Party to exercise any rights arising from default by the other
-Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other
-shall constitute a waiver of any later breach of covenant.
-12.Counterparts: This Agreement may be executed in two signed copies, each of which when taken
-together shall be deemed but one original.
-13.Severability: The validity or unenforceability of any provision or provisions of this Agreement
-shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
-14.Entire Agreement; Amendment: This Agreement contains the entire understandings between and
-among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment
-to this Agreement shall be valid unless set forth in writing and signed by both Parties.
-15.Notices: All notices required or permitted hereunder shall be in writing and shall be sent
-by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading
-of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received.
-16.Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS
-A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer
-opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall
-not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with
-iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing,
-and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications
-with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion.
-[REMAINDER
-OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]
-Pareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United StatesTel. +1 (212) 984.1096www.Pareteum.comNYSE MKT: TEUM
-[SIGNATURE
-PAGE TO NON-DISCLOSURE AGREEMENT]
-IN
-WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the
-date and year written above.
-Pareteum Corporation
-/s/ Denis McCarthy
-Name: Denis McCarthy
-Title: SVP Corporate Developement
-Date: February 15, 2018
-iPass:
-/s/ Darin Vickery
-Name: Darin VIckery
-Title: CFO
-Date: December 20, 2017
-Email: ............................................
-Pareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United StatesTel. +1 (212) 984.1096www.Pareteum.comNYSE MKT: TEUM