CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT _________________ (the “Consultant”), in consideration of the compensation to be paid to the Consultant pursuant to that certain Consulting Agreement (the “Consulting Agreement”) dated ______________ , 2009, services between the Consultant and _________________ (the “Company”), and the confidential information to which the Consultant will have access in connection with providing the consulting services thereunder, hereby agrees with the Company as follows: 1. Non-disclosure Obligation. The Consultant will not at any time, whether during or after the termination of the Consulting Agreement, for any reason whatsoever (other than to promote and advance the business of the Company) reveal to any person or entity any of the trade secrets or other confidential, proprietary or business information concerning the Company or its affiliates: including its research and development activities; product designs, prototypes and technical specifications; show-how and know-how; offering memoranda, marketing plans and strategies; investor lists and information; information concerning investments and potential investments in managed funds; pricing and costing strategies; customer and supplier lists and accounts; or nonpublic financial information of the Company so far as they have come or may come to the Consultant’s knowledge, except as may be required in the ordinary course of performing his duties under the Consulting Agreement. This restriction shall not apply to: (i) information that is in the public domain through no fault of the Consultant, (ii) information approved for release by written authorization of the Company, or (iii) information that may be required by law or an order of any court, agency or proceeding to be disclosed (but only for the purposes of and to the minimum extent required by such compelled disclosure, and provided that the Consultant promptly notifies the Company of such requirement and provides the Company all reasonable assistance and cooperation in seeking to oppose such requirement or obtain protective treatment). The Consultant shall keep secret all matters of such nature entrusted to it and shall not use or disclose any such information for the benefit of any third party in any manner, directly or indirectly. The Consultant agrees promptly to return to the Company all tangible embodiments of the foregoing and all manuals, business plans, manuscripts, reports, letters, notes, notebooks, drawings, diagrams, prints, models, data storage devices and all other materials belonging to the Company or its customers upon the Company’s request at any time (and immediately upon the termination of the Consulting Agreement). In addition, any confidential information or other Company information which is in electronic format or cannot be otherwise returned to the Company shall be destroyed by the Consultant upon termination of the Consulting Agreement. Notwithstanding the return or destruction of such confidential business information, the Consultant shall continue to be bound by the restrictions set forth in this Section 1 after the termination of his engagement by the Company and this Agreement. 2. Assignment of Inventions. The Consultant expressly understands and agrees that any and all rights or interest it has obtained or will obtain in any works of authorship, designs, trade secrets, technical specifications and technical data, know-how and show-how, customer and vendor lists, marketing plans, pricing policies, manuals, models, prototypes, inventions, concepts, ideas and expressions, discoveries, improvements and patents or patent rights which are or have been authored, conceived, devised, developed, reduced to practice, alone or with others, or otherwise obtained by it during the term of this Agreement which relate to or arise out of the Consulting Agreement with the Company, are expressly regarded
as “works for hire” (the “Inventions”). The Consultant hereby assigns and agrees to assign to the Company the sole and exclusive right, title and interest to such Inventions (including all patent rights, copyright rights, trade secret rights and all other intellectual and industrial property rights of any kind throughout the world therein or related thereto). The Consultant agrees that it will promptly disclose to the Company any and all such Inventions, and that, upon request of the Company, the Consultant will execute and deliver any and all documents or instruments and take any other action which the Company shall deem necessary to assign and vest completely in the Company, to perfect trademark, copyright and patent protection with respect to, or to enforce, defend or otherwise protect the Company’s trade secrets and proprietary interest in such Inventions. The obligations of this Section 2 shall continue beyond the termination of the Consulting Agreement with respect to such Inventions. The Consultant’s obligation to assign Inventions shall not apply to any invention which: (i) was developed entirely on the Consultant’s own time and effort, (ii) used no equipment, supplies, facility, trade secrets or confidential information or other assets of the Company in its development, (iii) does not relate to the business of the Company or to the Company’s actual or anticipated research and development activities, and (iv) does not result from any work performed by the Consultant for the Company. The Consultant agrees to be bound by any obligations or restrictions that are made known to it relating to the terms of assignment of inventions or confidentiality obligations set forth in agreements between the Company and any third party. The Consultant shall take all necessary action that may be required from time to time to discharge the obligations of the Company under such agreements. 3. Non-Competition and Non-Solicitation. The Consultant agrees that during the term of the Consulting Agreement and for a period of twelve (12) months after termination of such agreement (for any reason), the Consultant shall not, directly or indirectly: (i) be or prepare to be an owner, founder, shareholder, partner, member, advisor, director, consultant, contractor, agent, employee, affiliate or co-venturer, or otherwise act in any capacity (other than as a holder of less than one percent (1%) of the outstanding equity of a public company) of, in or with respect to any commercial activity, a primary business of which is to (A) act as an asset manager or advisor, directly or indirectly, to an asset manager, in respect of institutional or retail assets relating to investment vehicles whose primary investments are in other investment vehicles (e.g., funds of funds), or (B) invest, directly or indirectly, in early stage private alternative investment vehicles, including without limitation, hedge funds or private equity funds, and in connection therewith, directly or indirectly, receive ownership rights or the economic equivalents in the entities that manage such private alternative investment vehicles and/or the entities (other than the outside investors in such private alternative investment vehicles), including, without limitation, general partners and equivalents which have the right to receive allocations or revenues from such private alternative investment vehicles; (ii) either for himself or for any other commercial enterprise, hire, attempt to hire or otherwise solicit or attempt to solicit for employment, or service as a consultant, any employees or consultants of or to the Company or otherwise encourage any such employee or consultant to terminate his or her relationship with the Company and enter into any such relationship with the Consultant or such other commercial enterprise; or (iii) entice or otherwise take away from the Company the business or patronage of any customer, investor, supplier or prospect. 4. Remedies. Each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be
deemed a waiver of any other right or remedy. The Consultant agrees that any breach of this Agreement by the Consultant will cause irreparable damage to the Company for which money damages will be an inadequate remedy. The Company shall have, in addition to any and all remedies at law or equity, the right to an injunction or other equitable relief to prevent any violation of the Consultant’s obligations hereunder, without the necessity of posting any bond or surety. 5. Absence of Conflicting Agreements. The Consultant understands that the Company does not desire to acquire from it any trade secrets or confidential business information that it may have acquired from others. The Consultant represents and warrants that it is not and will not become bound by any agreement, commitment, arrangement or court order, or any other existing or previous business relationship which violates, conflicts with or prevents the full performance of the Consultant’s duties and obligations to the Company pursuant to the Consulting Agreement. The Consultant represents and warrants that it does not and will not have any obligations to assign to any other person or entity not affiliated with the Company, any Inventions or other intellectual property covered by Section 2 hereto. 6. Arbitration. Except as otherwise provided herein with respect to the Company’s right to seek injunctive and/or other equitable relief from a court of competent jurisdiction in connection with the Employee’s breach or threatened breach of this Agreement, the Consultant and the Company agree to submit to arbitration, pursuant to the terms of this Agreement, any claims which arise out of or relate to this Agreement. The Consultant and the Company expressly acknowledge and agree that arbitration shall be the exclusive forum for the adjudication of any claims covered by this Agreement, that each party is waiving the right to file suit in court, and that each party shall be precluded from bringing suit in court with respect to any claim(s) that was or could have been brought pursuant to this Agreement, or as otherwise described in this paragraph. Claims by the Company for injunctive and/or other equitable relief arising out of the use and/or unauthorized disclosure of trade secrets or confidential information, and/or breach of this Agreement are not covered by this Agreement, it being understood and agreed that the Company may seek and obtain injunctive relief for such claims from a court of competent jurisdiction. All arbitrations pursuant to this Agreement shall be initiated and conducted in accordance with the rules of the American Arbitration Association. Any arbitration pursuant to this Agreement shall be held in New York County, New York. Costs and attorneys’ fees shall be borne by each party incurring them, and the fees of the arbitrator shall be borne equally by the parties. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of New York, or federal law, or both, as applicable to the claim(s) asserted. In adjudicating any claim arising under a federal statute, the arbitrator shall be bound by any applicable interpretation of such statute by the Supreme Court of the United States and the United States Court of Appeals for the Second Circuit. In adjudicating any claim arising under any state or local statute, the arbitrator shall be bound by any applicable interpretation of such statute issued by the highest court located in such state or locality to have addressed the question of law before the arbitrator. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall have authority to award remedies authorized by the statute(s) pursuant to which any party’s claim(s) arises, including costs and attorneys’ fees, but shall have no authority to award remedies not authorized, or to award damages in excess of any cap
imposed by such statute. The arbitrator shall have no authority to award punitive damages with respect to non-statutory claims, including, without limitation, claims for breach of contract. The Consultant and the Company agree that any award issued by an arbitrator pursuant to this Agreement shall be final and binding on both parties. Any such award may be vacated or modified only to the extent authorized by the Federal Arbitration Act. The Company and the Consultant agree that neither shall file or commence a lawsuit or arbitration in any way related to any claim agreed to be arbitrated under this Agreement, except in accordance with the terms of this Agreement. If either party violates this provision, the other party shall be entitled to dismissal or injunctive relief regarding such lawsuit or arbitration and recovery of all costs and disbursements, losses, and attorneys’ fees related to such other proceeding, if such claim is dismissed, to the extent permitted by law. 7. Miscellaneous. Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be constructed as a waiver of any subsequent breach hereof. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If one or more of the provisions of this Agreement shall for any reason be held to be excessively broad as to scope, activity or subject matter so as to be unenforceable at law or equity, such provision(s) shall be construed and reformed by the appropriate judicial body by limiting and reducing it (or them,) so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. The obligations of the Consultant under this Agreement shall survive the termination of the Consulting Agreement regardless of the manner of such termination. All covenants and agreements hereunder shall inure to the benefit of and be enforceable by the assignees and successors of the Company. The obligations of the Consultant hereunder are personal to the Consultant and cannot be assigned by him. [Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and seals this ____________________ , 2009.
By: Name: ____________________
AGREED AND ACCEPTED:
NAME OF COMPANY
By: Name: Title: