Common use of Confidentiality Non Solicitation Clause in Contracts

Confidentiality Non Solicitation. (a) The Purchaser and its Representatives (as such term is defined in the Confidentiality Agreement), on the one hand, and the Sellers, the Company and their respective Representatives (as such term is defined in the Confidentiality Agreement), on the other hand, shall treat all nonpublic information obtained in connection with this Agreement and the Transactions (including the entering into of this Agreement and the Transactions) as confidential in accordance with the terms of the Confidentiality Agreement. The terms of the Confidentiality Agreement are hereby incorporated by reference and shall continue in full force and effect until the Closing, at which time such Confidentiality Agreement shall terminate. If this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement shall continue in full force and effect in accordance with its terms. (b) For a period of three (3) years following the Closing, the Purchaser shall, and shall cause the Company and its Subsidiaries to, keep confidential and not use for any purpose all nonpublic information regarding the Sellers’ Representative, the Sellers or their Affiliates (other than the Company and its Subsidiaries) of which the Purchaser or the Company became aware as a result of the Transactions (i) unless such information becomes available to the general public through no act or omission of the Purchaser, the Company or its Subsidiaries in breach of this Agreement, (ii) is or becomes available to the Purchaser, the Company, its Subsidiaries or their respective Affiliates on a non-confidential basis from a source who is not, to the Knowledge of the Purchaser, subject to a confidentiality or similar agreement, duty or obligation prohibiting such disclosure, (iii) was independently developed without the use of such confidential information by the Purchaser, the Company, its Subsidiaries or their respective Affiliates after the Closing or (iv) unless such information is required by Law to be disclosed (provided, that prior to any disclosure pursuant to this clause (iv), to the extent reasonably practicable and permitted by Law, the Purchaser shall give the Sellers and Sellers’ Representative notice of such disclosure and reasonably cooperate with the Sellers and Sellers’ Representative to obtain a protective order or other confidential treatment with respect thereto, and in any event, only disclose such portion of such information as may be required by such Law). (c) For a period of four (4) years following the Closing Date, each Seller and the Sellers’ Representative shall treat all data and information relating to the Purchaser, the Company or any of their respective Affiliates or their respective businesses (including the Acquired Business), assets, liabilities, and all data and information relating to the customers, suppliers, financial statements, conditions or operations of the Purchaser, the Company and their respective Affiliates, as confidential, preserve the confidentiality thereof, not duplicate or use or disclose to any Person such data or information and cause its Affiliates and Representatives who have had access to such data and information to keep confidential and not to use any such data or information (i) unless such data or information is now or is hereafter disclosed, through no act or omission of any Seller, or its Affiliates or Representatives, in a manner making it available to the general public, (ii) is or becomes available to the Sellers, the Sellers’ Representative or their respective Affiliates on a non-confidential basis from a source who is not, to the Knowledge of the Sellers, subject to a confidentiality or similar agreement, duty or obligation prohibiting such disclosure, (iii) was independently developed without the use of such confidential information by the Sellers, the Sellers’ Representative or their respective Affiliates after the Closing (and for the avoidance of doubt, was so independently developed without the benefit of any knowledge or confidential information (or access thereto) that any such Person has by virtue of Sellers’ pre-Closing ownership and operation of the Acquired Business) or (iv) unless such data or information is required by Law to be disclosed (provided, that prior to any disclosure pursuant to this clause (iv), to the extent reasonably practicable and permitted by Law, such Seller or such Affiliate or Representative shall give the Purchaser notice of such disclosure and reasonably cooperate with the Purchaser to obtain a protective order or other confidential treatment with respect thereto, and in any event, only disclose such portion of such data or information as may be required by such Law). The Purchaser acknowledges that, following the Closing, the Sellers and certain of their respective Affiliates will engage in (i) the Acquired Business, solely as it relates to conducting operations in the ordinary course to perform its obligations under (A) the Excluded Contracts (other than the Contracts described in clause (ii) in the definition thereof) in substantially the same manner as prior to the Closing and (B) the Transition Services Agreement, and with respect to any other assets of the Business that are retained by NewCo, (ii) the ownership, operation, development and management of real property and related assets with respect to any hotel, resort or residential real property and related assets owned in whole or in part by any such Seller or any Affiliate of such Seller and (iii) any other business activities (other than the Acquired Business) any such Seller or any Affiliate of such Seller currently engages in and any natural extensions thereof (collectively, “Ancillary Activities”). Notwithstanding anything herein to the contrary, the Purchaser agrees that neither the Sellers, the Sellers’ Representative nor any of their respective Affiliates will be in breach of any provision of this Section 6.03(c) solely to the extent of the Sellers, the Sellers’ Representative or any of their respective Affiliates continuing to engage in such Ancillary Activities following the Closing Date, provided that the Sellers, the Sellers’ Representative or any of their respective Affiliates use commercially reasonable efforts to not use the data or information described in the first sentence of this Section 6.03(c) in connection with such activities described in clauses (ii) and (iii) of the definition of Ancillary Activities, and in any event, shall not disclose any such data or information other than to their Representatives that need to know the same in connection with the Ancillary Activities applicable to such Representative. Further, Purchaser acknowledges and agrees that Affiliates of Sellers own interests in various properties that are subject to Hotel Management Agreements and that nothing hereunder limits or restricts any such Affiliate’s ownership, access or use of any data or information related to any such properties. (d) For a period of three (3) years following the Closing Date, each Seller agrees that it shall not, and shall cause its Affiliates not to, directly or indirectly, (i) solicit (or permit to be directly or indirectly solicited) or employ any Person who is set forth on Schedule 6.03(d) of the Sellers’ Disclosure Letter; provided that if any individual set forth on Schedule 6.03(d) is, immediately following the Closing, employed by NewCo, and such individual does not receive an offer of employment from Purchaser or its Affiliates within thirty (30) days following the termination of the Transition Services Agreement, then such individual shall be deemed to be removed from Schedule 6.03(d); provided further that the foregoing shall not prohibit (i) a general solicitation to the public by means of general advertising or similar methods of solicitation by search firms not specifically directed at such Person, (ii) the soliciting, recruiting or hiring of any such Person who has voluntarily ceased to be employed or retained by the Purchaser, the Company or any of their respective Affiliates for a period of at least sixty (60) days without any solicitation by any Seller; or (iii) the soliciting, recruiting or hiring of any such Person who has involuntarily ceased to be employed or retained by the Purchaser, the Company or any of their respective Affiliates.

Confidentiality Non Solicitation. (a) The Purchaser acknowledges and its Representatives (as such term is defined in the Confidentiality Agreement), on the one hand, and the Sellers, the Company and their respective Representatives (as such term is defined in the Confidentiality Agreement), on the other hand, shall treat all nonpublic information obtained in connection with this Agreement and the Transactions (including the entering into of this Agreement and the Transactions) as confidential in accordance with the terms of the Confidentiality Agreement. The terms of agrees that the Confidentiality Agreement are hereby incorporated by reference and shall continue in full force and effect until the Closing, at which time such Confidentiality Agreement shall terminate. If this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement shall continue remains in full force and effect in accordance with its termsterms (and shall be, and shall be deemed to be, binding on the Purchaser as an original signatory thereto) during the period from the execution hereof until the Closing. The Parties acknowledge and agree that the Confidentiality Agreement shall automatically terminate and be of no further force or effect at the Closing, provided that Purchaser agrees that the Confidentiality Agreement shall continue to apply in full force and effect to confidential information received thereunder by the Purchaser not concerning the Conifex Group or the Business, if any. From and after the Closing, each Vendor shall, and shall cause its Affiliates to, hold, and shall cause its Representatives to hold, in confidence (and not disclose or provide access to any other Person) any and all information, whether written or oral, concerning the Conifex Group or the Business, except to the extent that such Vendor can show that such information (a) is generally available to and known by the public through no fault of such Vendor or its Affiliates (including the Conifex Group) or Representatives; or (b) is lawfully acquired by such Vendor or its Affiliates or Representatives from and after the Closing from sources unaffiliated with the Purchaser or the Conifex Group which are, to the Vendors’ knowledge, not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Vendor or its Affiliates or Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, Vendors shall promptly notify Purchaser in writing (if permitted by Law) and shall disclose only that portion of such information which Vendors are advised by its counsel in writing is legally required to be disclosed; provided, however, that Vendors shall use their commercially reasonable efforts to obtain an appropriate protective Order or other reasonable assurance that confidential treatment will be accorded such information. (b) For a period of three (3) years following the Closing, the Purchaser shall, and shall cause the Company and its Subsidiaries to, keep confidential and not use for any purpose all nonpublic information regarding the Sellers’ Representative, the Sellers or their Affiliates (other than the Company and its Subsidiaries) of which the Purchaser or the Company became aware as a result of the Transactions (i) unless such information becomes available to the general public through no act or omission of the Purchaser, the Company or its Subsidiaries in breach of this Agreement, (ii) is or becomes available to the Purchaser, the Company, its Subsidiaries or their respective Affiliates on a non-confidential basis from a source who is not, to the Knowledge of the Purchaser, subject to a confidentiality or similar agreement, duty or obligation prohibiting such disclosure, (iii) was independently developed without the use of such confidential information by the Purchaser, the Company, its Subsidiaries or their respective Affiliates after From the Closing or Date until the second (iv2nd) unless such information is required by Law to be disclosed (provided, that prior to any disclosure pursuant to this clause (iv), to the extent reasonably practicable and permitted by Law, the Purchaser shall give the Sellers and Sellers’ Representative notice anniversary of such disclosure and reasonably cooperate with the Sellers and Sellers’ Representative to obtain a protective order or other confidential treatment with respect thereto, and in any event, only disclose such portion of such information as may be required by such Law). (c) For a period of four (4) years following the Closing Date, each Seller and the Sellers’ Representative shall treat all data and information relating to the Purchaser, the Company or any of their respective Affiliates or their respective businesses (including the Acquired Business), assets, liabilities, and all data and information relating to the customers, suppliers, financial statements, conditions or operations of the Purchaser, the Company and their respective Affiliates, as confidential, preserve the confidentiality thereof, not duplicate or use or disclose to any Person such data or information and cause its Affiliates and Representatives who have had access to such data and information to keep confidential and not to use any such data or information (i) unless such data or information is now or is hereafter disclosed, through no act or omission of any Seller, or its Affiliates or Representatives, in a manner making it available to the general public, (ii) is or becomes available to the Sellers, the Sellers’ Representative or their respective Affiliates on a non-confidential basis from a source who is not, to the Knowledge of the Sellers, subject to a confidentiality or similar agreement, duty or obligation prohibiting such disclosure, (iii) was independently developed without the use of such confidential information by the Sellers, the Sellers’ Representative or their respective Affiliates after the Closing (and for the avoidance of doubt, was so independently developed without the benefit of any knowledge or confidential information (or access thereto) that any such Person has by virtue of Sellers’ pre-Closing ownership and operation of the Acquired Business) or (iv) unless such data or information is required by Law to be disclosed (provided, that prior to any disclosure pursuant to this clause (iv), to the extent reasonably practicable and permitted by Law, such Seller or such Affiliate or Representative shall give the Purchaser notice of such disclosure and reasonably cooperate with the Purchaser to obtain a protective order or other confidential treatment with respect thereto, and in any event, only disclose such portion of such data or information as may be required by such Law). The Purchaser acknowledges that, following the Closing, the Sellers and certain of their respective Affiliates will engage in (i) the Acquired Business, solely as it relates to conducting operations in the ordinary course to perform its obligations under (A) the Excluded Contracts (other than the Contracts described in clause (ii) in the definition thereof) in substantially the same manner as prior to the Closing and (B) the Transition Services Agreement, and with respect to any other assets of the Business that are retained by NewCo, (ii) the ownership, operation, development and management of real property and related assets with respect to any hotel, resort or residential real property and related assets owned in whole or in part by any such Seller or any Affiliate of such Seller and (iii) any other business activities (other than the Acquired Business) any such Seller or any Affiliate of such Seller currently engages in and any natural extensions thereof (collectively, “Ancillary Activities”). Notwithstanding anything herein to the contrary, the Purchaser agrees that neither the Sellers, the Sellers’ Representative nor any of their respective Affiliates will be in breach of any provision of this Section 6.03(c) solely to the extent of the Sellers, the Sellers’ Representative or any of their respective Affiliates continuing to engage in such Ancillary Activities following the Closing Date, provided that the Sellers, the Sellers’ Representative or any of their respective Affiliates use commercially reasonable efforts to not use the data or information described in the first sentence of this Section 6.03(c) in connection with such activities described in clauses (ii) and (iii) of the definition of Ancillary Activities, and in any event, shall not disclose any such data or information other than to their Representatives that need to know the same in connection with the Ancillary Activities applicable to such Representative. Further, Purchaser acknowledges and agrees that Affiliates of Sellers own interests in various properties that are subject to Hotel Management Agreements and that nothing hereunder limits or restricts any such Affiliate’s ownership, access or use of any data or information related to any such properties. (d) For a period of three (3) years following the Closing Date, each Seller agrees that it Vendors shall not, and shall cause its each of their Affiliates not to, directly solicit or indirectly, (i) attempt to solicit any Conifex Group Business Employee (or permit to be directly any individual who was an employee or indirectly solicited) or employ consultant of any Person who is set forth on Schedule 6.03(d) member of the Sellers’ Disclosure Letter; provided that if Conifex Group during the six (6) months prior to Closing) for employment or in any individual set forth on Schedule 6.03(dother capacity (including as an independent contractor or consultant) is, immediately following the Closing, employed by NewCo, and such individual does not receive an offer of employment from Purchaser or its Affiliates within thirty (30) days following the termination of the Transition Services Agreement, then such individual shall be deemed to be removed from Schedule 6.03(d); provided further that the foregoing shall not prohibit (i) a general solicitation to the public by means of general advertising or similar methods of solicitation by search firms not specifically directed at such Person, (ii) the soliciting, recruiting or hiring of any such Person who has voluntarily ceased to be employed or retained by the Purchaser, the Company with either Vendor or any of their respective Affiliates. The foregoing restrictions shall not apply to any solicitation directed at the public or industry participants in general by the Vendors or their Affiliates or any recruiting or executive search firm, provided that such firm was not encouraged or instructed by the Vendors or their Affiliates to undertake the solicitation of specific persons otherwise prohibited under this paragraph. (c) Each party agrees and acknowledges that the provisions of this Section 5.3 (collectively, the “Restrictive Covenants”) have been separately bargained for to protect the Purchaser and its businesses, including goodwill, and from and after the Closing, the Business, and ensure that the parties hereto shall have the full benefits of their agreements under this Agreement. Each party hereto recognizes that that the Restrictive Covenants constitute an important part of the consideration being provided under this Agreement, that such covenants are necessary in order to protect and maintain the legitimate business interests of the Purchaser and are fair and reasonable in all respects, and that the Purchaser would not consummate the transactions contemplated hereby but for such agreements. Each Vendor further acknowledges and agrees that a period substantial and legally sufficient portion of at least sixty the Purchase Price is attributable to the Restrictive Covenants. The parties further acknowledge and agree that the Restrictive Covenants are reasonable and provide no more protection than is reasonably necessary to protect the Purchaser’s legitimate business interest. Each Vendor hereby waives any right to assert inadequacy of consideration as a defense to enforcement of the Restrictive Covenants should such enforcement ever become necessary. (60d) days If either Vendor or any of its Affiliates breaches, or threatens to commit a breach of, any of the Restrictive Covenants, the Purchaser shall have, in addition to, and not in lieu of, any other rights and remedies available to it under Law or in equity, the right to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, without any solicitation by requirement to post bond or other security, it being agreed that any Seller; breach or (iii) threatened breach of the soliciting, recruiting Restrictive Covenants would cause irreparable injury to the Purchaser and that money damages would not provide an adequate remedy. Each Vendor covenants and agrees not to oppose any demand for specific performance or hiring injunctive or other equitable relief in case of any such Person who has involuntarily ceased breach or attempted breach. (e) If any provision of this Section 5.3 as applied to any part or to any circumstances shall be adjudged by any court of competent jurisdiction to be employed invalid or retained by the Purchaserunenforceable, the Company same shall in no way affect any other provision of this Section 5.3, the application of such provision in any other circumstances, or the validity or enforceability of this Section 5.3. The parties intend this Section 5.3 to be enforced as written. If any provision, or part thereof, however, is held to be unenforceable because of their respective Affiliatesthe duration or scope thereof, the parties agree that the Governmental Authority making such determination shall have the power to reduce the duration or scope of such provision, and/or to delete specific words or phrases and in its reduced form such provision shall then be enforceable.

Confidentiality Non Solicitation. (a) The Purchaser Unless this Agreement is terminated pursuant to the terms hereof, Newtek hereby agrees that it will not, and that it will cause its Affiliates, stockholders, partners, managers, members, directors, officers, agents and representatives not to, at any time after the Execution Date, directly or indirectly, without the prior written consent of the Parent, disclose or use any Confidential Information of, involving or relating to the Company, other than in the performance of such Person’s duties as an employee or agent of, or otherwise on behalf of, the Company, Parent, Newtek or any of their respective Affiliates; provided, that the provisions of this Section 7.7(a) will not (x) prohibit any retention of copies of records or disclosure (i) required by applicable Law so long as, to the extent practicable, reasonable prior notice is given to the Parent of such disclosure and a reasonable opportunity is afforded to contest the same (except that prior notice shall not be required with respect to any disclosures to any federal banking regulator with competent jurisdiction over Newtek or any of its Affiliates), (ii) reasonably necessary and made in connection with the enforcement of any right or remedy relating to this Agreement and done in a manner where such disclosure does not make Confidential Information publicly-available or (y) prohibit Newtek or any of its Affiliates, stockholders, partners, managers, members, directors, officers, employees, agents and representatives from using, in the ordinary course of Newtek’s and its Representatives (as such term is defined in the Confidentiality Agreement)Affiliates’ businesses, on the one handany Confidential Information of, and the Sellersinvolving or relating to, the Company which was routinely used in Newtek’s and their respective Representatives (its Affiliates’ businesses as such term is defined in the Confidentiality Agreement), on the other hand, shall treat all nonpublic information obtained in connection with this Agreement and the Transactions (including the entering into of this Agreement and the Transactions) as confidential in accordance with the terms of the Confidentiality Agreement. The terms of the Confidentiality Agreement are hereby incorporated by reference and shall continue in full force and effect until the Closing, at which time such Confidentiality Agreement shall terminate. If this Agreement is, for any reason, terminated or prior to the ClosingExecution Date (provided that, for the avoidance of doubt, the Confidentiality Agreement shall continue use of such Confidential Information otherwise complies with the other obligations of Newtek and its Affiliates in full force and effect in accordance with its termsthis Section 7.7). (b) For a period of three (3) five years following the Closing, the Purchaser shall, from and shall cause the Company and its Subsidiaries to, keep confidential and not use for any purpose all nonpublic information regarding the Sellers’ Representative, the Sellers or their Affiliates (other than the Company and its Subsidiaries) of which the Purchaser or the Company became aware as a result of the Transactions (i) unless such information becomes available to the general public through no act or omission of the Purchaser, the Company or its Subsidiaries in breach of this Agreement, (ii) is or becomes available to the Purchaser, the Company, its Subsidiaries or their respective Affiliates on a non-confidential basis from a source who is not, to the Knowledge of the Purchaser, subject to a confidentiality or similar agreement, duty or obligation prohibiting such disclosure, (iii) was independently developed without the use of such confidential information by the Purchaser, the Company, its Subsidiaries or their respective Affiliates after the Closing or (iv) unless such information is required by Law to be disclosed (provided, that prior to any disclosure pursuant to this clause (iv), to the extent reasonably practicable and permitted by Law, the Purchaser shall give the Sellers and Sellers’ Representative notice of such disclosure and reasonably cooperate with the Sellers and Sellers’ Representative to obtain a protective order or other confidential treatment with respect thereto, and in any event, only disclose such portion of such information as may be required by such Law). (c) For a period of four (4) years following the Closing Date, each Seller and the Sellers’ Representative shall treat all data and information relating to the Purchaser, the Company or any of their respective Affiliates or their respective businesses (including the Acquired Business), assets, liabilities, and all data and information relating to the customers, suppliers, financial statements, conditions or operations of the Purchaser, the Company and their respective Affiliates, as confidential, preserve the confidentiality thereof, not duplicate or use or disclose to any Person such data or information and cause its Affiliates and Representatives who have had access to such data and information to keep confidential and not to use any such data or information (i) unless such data or information is now or is hereafter disclosed, through no act or omission of any Seller, or its Affiliates or Representatives, in a manner making it available to the general public, (ii) is or becomes available to the Sellers, the Sellers’ Representative or their respective Affiliates on a non-confidential basis from a source who is not, to the Knowledge of the Sellers, subject to a confidentiality or similar agreement, duty or obligation prohibiting such disclosure, (iii) was independently developed without the use of such confidential information by the Sellers, the Sellers’ Representative or their respective Affiliates after the Closing (and for the avoidance of doubt, was so independently developed without the benefit of any knowledge or confidential information (or access thereto) that any such Person has by virtue of Sellers’ pre-Closing ownership and operation of the Acquired Business) or (iv) unless such data or information is required by Law to be disclosed (provided, that prior to any disclosure pursuant to this clause (iv), to the extent reasonably practicable and permitted by Law, such Seller or such Affiliate or Representative shall give the Purchaser notice of such disclosure and reasonably cooperate with the Purchaser to obtain a protective order or other confidential treatment with respect thereto, and in any event, only disclose such portion of such data or information as may be required by such Law). The Purchaser acknowledges that, following the Closing, the Sellers and certain of their respective Affiliates will engage in (i) the Acquired Business, solely as it relates to conducting operations in the ordinary course to perform its obligations under (A) the Excluded Contracts (other than the Contracts described in clause (ii) in the definition thereof) in substantially the same manner as prior to the Closing and (B) the Transition Services Agreement, and with respect to any other assets of the Business that are retained by NewCo, (ii) the ownership, operation, development and management of real property and related assets with respect to any hotel, resort or residential real property and related assets owned in whole or in part by any such Seller or any Affiliate of such Seller and (iii) any other business activities (other than the Acquired Business) any such Seller or any Affiliate of such Seller currently engages in and any natural extensions thereof (collectively, “Ancillary Activities”). Notwithstanding anything herein to the contrary, the Purchaser agrees that neither the Sellers, the Sellers’ Representative nor any of their respective Affiliates will be in breach of any provision of this Section 6.03(c) solely to the extent of the Sellers, the Sellers’ Representative or any of their respective Affiliates continuing to engage in such Ancillary Activities following the Closing Date, provided that the Sellers, the Sellers’ Representative or any of their respective Affiliates use commercially reasonable efforts to not use the data or information described in the first sentence of this Section 6.03(c) in connection with such activities described in clauses (ii) and (iii) of the definition of Ancillary Activities, and in any event, shall not disclose any such data or information other than to their Representatives that need to know the same in connection with the Ancillary Activities applicable to such Representative. Further, Purchaser acknowledges and agrees that Affiliates of Sellers own interests in various properties that are subject to Hotel Management Agreements and that nothing hereunder limits or restricts any such Affiliate’s ownership, access or use of any data or information related to any such properties. (d) For a period of three (3) years following the Closing Date, each Seller agrees that it Newtek shall not, and shall cause its officers then-employed and its Affiliates (including each such Affiliate’s then-employed officers) (collectively, the “Restricted Persons”) not to, directly or indirectly, in the Restricted Area own, manage, operate, or control any entity, (other than the Company and the Parent), whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business (the “Restricted Business”) anywhere in the world; provided, that the foregoing obligation (i) solicit (or permit shall apply with respect to be directly or indirectly solicited) or employ any Person who is set forth on Schedule 6.03(d) of the Sellers’ Disclosure Letter; provided that if any individual set forth on Schedule 6.03(d) is, immediately following the Closing, officers only while such executive officers are employed by NewCo, and such individual does not receive an offer of employment from Purchaser Newtek or its Affiliates within thirty (30) days following the termination of the Transition Services Agreement, then such individual shall be deemed to be removed from Schedule 6.03(d); provided further that the foregoing shall not prohibit (i) a general solicitation to the public by means of general advertising or similar methods of solicitation by search firms not specifically directed at such Person, and (ii) the soliciting, recruiting shall not restrict or hiring of prevent Newtek from engaging in any such Person who has voluntarily ceased to be employed or retained by the Purchaser, the Company ordinary course banking activity or any business (other than the Business) in which Newtek currently engages (including the incidental ownership, management, operation or control by Newtek or its Affiliates of their respective Affiliates for a period of at least sixty (60) days without any solicitation by any Seller; or (iii) an entity engaged in the soliciting, recruiting or hiring of any Business resulting directly from such Person who has involuntarily ceased to be employed or retained by the Purchaser, the Company ordinary course banking activity or any of their respective Affiliatesbusiness (other than the Business) in which Newtek currently engages).

Confidentiality Non Solicitation. (a) The Purchaser and its Representatives (as such term Notwithstanding anything contained in this Agreement, if the Transaction is defined in the Confidentiality Agreement), on the one hand, and the Sellers, the Company and their respective Representatives (as such term is defined in the Confidentiality Agreement), on the other hand, shall treat all nonpublic information obtained in connection with this Agreement and the Transactions (including the entering into of this Agreement and the Transactions) as confidential in accordance with the terms of the Confidentiality Agreement. The terms of the Confidentiality Agreement are hereby incorporated by reference and shall continue in full force and effect until the Closing, at which time such Confidentiality Agreement shall terminate. If this Agreement is, not completed for any reason, terminated prior the Purchaser shall hold in strict confidence and shall not disclose to any Person or use any confidential information obtained by the Purchaser with respect to the ClosingBusiness and the affairs of the Corporations and shall not solicit for employment or employ any employee of the Corporations (or any person who was an employee of any of the Corporations at any time after October 1, 2012) for a period of two years from the date this Agreement is terminated. In the event of the non-completion of the Transaction, all work papers and other written material obtained by the Purchaser from the Vendors or prepared by the employees of the Purchaser in the course of any examination of the books and records of the Business or disclosure pertaining to the Business shall be promptly returned to the Vendors or destroyed, as appropriate. Upon completion of the Transaction, the Confidentiality Agreement Vendors shall continue hold in full force strict confidence and effect shall not disclose to any Person (other than the Purchaser) or use any confidential information with respect to the Business and the affairs of the Corporations and neither Vendors nor any of their Affiliates shall solicit for employment or employ any employee of the Corporations (or any person who was an employee of any of the Corporations at any time after October 1, 2012) for a period of two years from the Closing Date. The obligation of a party under this Section to keep confidential and not disclose or use any confidential information does not apply to information which: (a) becomes generally available to the public other than as a result of a disclosure in accordance with its terms.violation of this Agreement; (b) For a period of three (3with respect to the Purchaser) years following the Closing, the Purchaser shall, and shall cause the Company and its Subsidiaries to, keep confidential and not use for any purpose all nonpublic information regarding the Sellers’ Representative, the Sellers or their Affiliates (other than the Company and its Subsidiaries) of which the Purchaser or the Company became aware as a result of the Transactions (i) unless such information becomes was available to the general public through no act or omission of the Purchaser, the Company or its Subsidiaries in breach of this Agreement, (ii) is or becomes available to the Purchaser, the Company, its Subsidiaries or their respective Affiliates Purchaser on a non-confidential basis from a source who is notbefore its disclosure by the Vendors, to the Knowledge any representative of the Purchaser, subject to a confidentiality or similar agreement, duty or obligation prohibiting such disclosure, (iii) was independently developed without the use of such confidential information by the PurchaserVendors, the CompanyCorporations, its Subsidiaries or their respective Affiliates after any representative of the Closing or (iv) unless such information is required by Law to be disclosed (provided, that prior to any disclosure pursuant to this clause (iv), to the extent reasonably practicable and permitted by Law, the Purchaser shall give the Sellers and Sellers’ Representative notice of such disclosure and reasonably cooperate with the Sellers and Sellers’ Representative to obtain a protective order or other confidential treatment with respect thereto, and in any event, only disclose such portion of such information as may be required by such Law).Corporations; (c) For a period of four (4) years following the Closing Date, each Seller and the Sellers’ Representative shall treat all data and information relating to the Purchaser, the Company or any of their respective Affiliates or their respective businesses (including the Acquired Business), assets, liabilities, and all data and information relating to the customers, suppliers, financial statements, conditions or operations of the Purchaser, the Company and their respective Affiliates, as confidential, preserve the confidentiality thereof, not duplicate or use or disclose to any Person such data or information and cause its Affiliates and Representatives who have had access to such data and information to keep confidential and not to use any such data or information (i) unless such data or information is now or is hereafter disclosed, through no act or omission of any Seller, or its Affiliates or Representatives, in a manner making it available to the general public, (ii) is or becomes available to the Sellers, the Sellers’ Representative or their respective Affiliates a party on a non-confidential basis from basis, if the source of such information is not bound by a source who is notconfidentiality agreement with the Vendors or the Corporations, to if the Knowledge of the SellersTransaction does not close, subject or becomes available to a confidentiality party on or similar agreement, duty or obligation prohibiting such disclosure, (iii) was independently developed without the use of such confidential information by the Sellers, the Sellers’ Representative or their respective Affiliates after the Closing on a non-confidential basis, if the source of such information is not bound by a confidentiality agreement with the Purchaser or the Corporations, if the Transaction does close; or (and for d) the avoidance of doubt, was so independently developed without Vendors or the benefit of Purchaser or any knowledge or confidential information (or access thereto) that any such Person has by virtue of Sellers’ pre-Closing ownership and operation representative of the Acquired Business) Vendors or (iv) unless such data or information the Purchaser is required by Applicable Law to be disclosed (disclose, provided, however that prior to any disclosure pursuant to this clause (iv), to the extent reasonably practicable and permitted by Law, such Seller if a Vendor or such Affiliate or Representative shall give the Purchaser notice or any representative thereof is compelled to disclose any such information then the Vendors or the Purchaser, as the case may be, shall promptly notify the other in writing and shall disclose only that portion of such disclosure and reasonably cooperate with the Purchaser information which such party is advised by its legal counsel in writing is legally required to be disclosed, further provided that such party shall exercise its reasonable best efforts to obtain a an appropriate protective order or other reasonable assurance that confidential treatment with respect thereto, and in any event, only disclose such portion of such data or information as may be required by such Law). The Purchaser acknowledges that, following the Closing, the Sellers and certain of their respective Affiliates will engage in (i) the Acquired Business, solely as it relates to conducting operations in the ordinary course to perform its obligations under (A) the Excluded Contracts (other than the Contracts described in clause (ii) in the definition thereof) in substantially the same manner as prior to the Closing and (B) the Transition Services Agreement, and with respect to any other assets of the Business that are retained by NewCo, (ii) the ownership, operation, development and management of real property and related assets with respect to any hotel, resort or residential real property and related assets owned in whole or in part by any such Seller or any Affiliate of such Seller and (iii) any other business activities (other than the Acquired Business) any such Seller or any Affiliate of such Seller currently engages in and any natural extensions thereof (collectively, “Ancillary Activities”). Notwithstanding anything herein to the contrary, the Purchaser agrees that neither the Sellers, the Sellers’ Representative nor any of their respective Affiliates will be in breach of any provision of this Section 6.03(c) solely to the extent of the Sellers, the Sellers’ Representative or any of their respective Affiliates continuing to engage in accorded such Ancillary Activities following the Closing Date, provided that the Sellers, the Sellers’ Representative or any of their respective Affiliates use commercially reasonable efforts to not use the data or information described in the first sentence of this Section 6.03(c) in connection with such activities described in clauses (ii) and (iii) of the definition of Ancillary Activities, and in any event, shall not disclose any such data or information other than to their Representatives that need to know the same in connection with the Ancillary Activities applicable to such Representative. Further, Purchaser acknowledges and agrees that Affiliates of Sellers own interests in various properties that are subject to Hotel Management Agreements and that nothing hereunder limits or restricts any such Affiliate’s ownership, access or use of any data or information related to any such propertiesinformation. (d) For a period of three (3) years following the Closing Date, each Seller agrees that it shall not, and shall cause its Affiliates not to, directly or indirectly, (i) solicit (or permit to be directly or indirectly solicited) or employ any Person who is set forth on Schedule 6.03(d) of the Sellers’ Disclosure Letter; provided that if any individual set forth on Schedule 6.03(d) is, immediately following the Closing, employed by NewCo, and such individual does not receive an offer of employment from Purchaser or its Affiliates within thirty (30) days following the termination of the Transition Services Agreement, then such individual shall be deemed to be removed from Schedule 6.03(d); provided further that the foregoing shall not prohibit (i) a general solicitation to the public by means of general advertising or similar methods of solicitation by search firms not specifically directed at such Person, (ii) the soliciting, recruiting or hiring of any such Person who has voluntarily ceased to be employed or retained by the Purchaser, the Company or any of their respective Affiliates for a period of at least sixty (60) days without any solicitation by any Seller; or (iii) the soliciting, recruiting or hiring of any such Person who has involuntarily ceased to be employed or retained by the Purchaser, the Company or any of their respective Affiliates.