its
ability to protect the value of the goodwill of the Business it is acquiring by
virtue of the Asset Purchase Agreement. The Company and the Stockholder
acknowledge that (i) the Stockholder's entry into this Agreement is critical to
the Company's ability to protect the value of the goodwill of the Business the
Company is acquiring in the Asset Purchase Agreement and (ii) the Stockholder's
execution and delivery of this Agreement is a condition precedent to the
Company's consummation of the acquisition contemplated by the Asset Purchase
Agreement.
D.
The Stockholder acknowledges that, as a
significant stockholder in Seller, individuals affiliated with Stockholder have
had significant responsibilities in the managing the businesses and operations
of Seller and Myers, and have had regular access to various confidential and/or
proprietary information relating to the Business.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the parties
hereby agree as follows:
1.
NON-DISCLOSURE COVENANT.
(A)
FOR A PERIOD OF FIVE YEARS AFTER THE
EFFECTIVE DATE, THE STOCKHOLDER SHALL NOT, AND SHALL CAUSE ITS AFFILIATES NOT TO
EITHER DIRECTLY OR INDIRECTLY, DISCLOSE TO ANY "UNAUTHORIZED PERSON" OR USE FOR
THE BENEFIT OF THE STOCKHOLDER OR ANY PERSON OR ENTITY OTHER THAN THE COMPANY
ANY KNOWLEDGE OR INFORMATION WHICH THE
STOCKHOLDER ACQUIRED WHILE IT WAS A STOCKHOLDER, EMPLOYED BY OR OTHERWISE
AFFILIATED WITH SELLER RELATING TO (I) THE FINANCIAL, MARKETING, SALES AND
BUSINESS PLANS AND AFFAIRS, FINANCIAL STATEMENTS, ANALYSES, FORECASTS AND
PROJECTIONS, BOOKS, ACCOUNTS, RECORDS, OPERATING COSTS AND EXPENSES AND OTHER
FINANCIAL INFORMATION OF SELLER OR MYERS; (II) INTERNAL MANAGEMENT TOOLS AND
SYSTEMS, COSTING POLICIES AND METHODS, PRICING POLICIES AND METHODS AND OTHER
METHODS OF DOING BUSINESS OF SELLER OR MYERS; (III) CUSTOMERS, SALES, CUSTOMER
REQUIREMENTS AND USAGES, DISTRIBUTOR LISTS OF SELLER OR MYERS; (IV) AGREEMENTS
WITH CUSTOMERS, VENDORS, INDEPENDENT CONTRACTORS, EMPLOYEES AND OTHERS OF SELLER
OR MYERS; (V) EXISTING AND FUTURE PRODUCTS OR SERVICES AND PRODUCT DEVELOPMENT
PLANS, DESIGNS, ANALYSES AND REPORTS OF SELLER OR MYERS; (VI) COMPUTER SOFTWARE
AND DATA BASES DEVELOPED FOR SELLER OR MYERS, TRADE SECRETS, RESEARCH, RECORDS
OF RESEARCH, MODELS, DESIGNS, DRAWINGS, TECHNICAL DATA AND REPORTS OF SELLER OR
MYERS; AND (VII) CORRESPONDENCE OR OTHER PRIVATE OR CONFIDENTIAL MATTERS,
INFORMATION OR DATA WHETHER WRITTEN, ORAL OR ELECTRONIC, WHICH IS PROPRIETARY TO
SELLER AND NOT GENERALLY KNOWN TO THE PUBLIC (INDIVIDUALLY AND COLLECTIVELY
"CONFIDENTIAL INFORMATION"), WITHOUT THE COMPANY'S PRIOR WRITTEN PERMISSION.
(B)
FOR PURPOSES OF THIS PARAGRAPH 1, THE TERM
"UNAUTHORIZED PERSON" SHALL MEAN ANY PERSON WHO IS NOT (I) AN OFFICER OR
DIRECTOR OF THE COMPANY OR AN EMPLOYEE OF THE COMPANY FOR WHOM THE DISCLOSURE OF
THE KNOWLEDGE OR INFORMATION REFERRED TO HEREIN IS NECESSARY FOR HIS PERFORMANCE
OF HIS ASSIGNED DUTIES; (II) AN EMPLOYEE, OFFICER OR DIRECTOR OF AN AFFILIATE OF
THE COMPANY FOR WHOM THE DISCLOSURE OF THE KNOWLEDGE OR INFORMATION REFERRED TO
HEREIN IS NECESSARY FOR HIS PERFORMANCE OF HIS ASSIGNED DUTIES; OR