Common use of Confidentiality; Nonsolicitation Clause in Contracts

Confidentiality; Nonsolicitation. (a) During your employment with the Trust and thereafter, except as required by your duties to the Trust or by law or legal process, you will not disclose or make accessible to any person or entity or use in any way for your own personal gain or to the Trust’s detriment any confidential information relating to the business of the Trust or its affiliates; provided, however, that “confidential information” shall not include information which: (i) is already generally available to, or becomes generally available to, the public other than as a result of your unauthorized disclosure; (ii) is disclosed to third parties without restriction with the prior permission of the Trust; (iii) is disclosed to you by a third party who is not an affiliate or employee, or a customer or other business relation of, the Trust, and who is under no duty of non-disclosure with respect to such information; or (iv) is known within the industry outside of the Trust other than due to a breach of this confidentiality restriction by you. Notwithstanding the above, nothing herein shall restrict your ability (i) to disclose any information required to be disclosed by law or by any governmental agency or to respond truthfully to any governmental agency inquiry or to any legal process, and/or (ii) to discuss matters relating to you and your job duties and responsibilities and/or your compensation and employment arrangements on a confidential basis with your legal counsel, accountant and other advisors, and/or (iii) to discuss Trust matters with the Trust’s inside and outside legal counsel, outside accountants, bankers, investment bankers and other advisors. Upon termination of your employment with the Trust for any reason, you will promptly return to the Trust all confidential materials property of the Trust or its affiliates over which you exercise any control, but you shall continue to have the right to retain your personal files including, without limitation, any such files that pre-date your Start Date and any data or documents that relate to this Agreement or otherwise relate to your employment and compensation arrangements as an executive officer of the Trust. (b) You will not at any time during your employment with the Trust, and for a period of one year after the termination of such employment for any reason, except in the good faith performance of your duties to the Trust, directly or indirectly, induce or solicit any employee of the Trust to leave the employ of, any independent contractor to terminate any independent contractor relationship with, or any customer, tenant, lender or other party which transacts business with the Trust to adversely change any relationship with, the Trust. (c) Paragraphs 7(a) and (b) above are intended to protect confidential information of the Trust and its affiliates, and relate to matters which are of a special and unique character, and their violation could cause irreparable injury to the Trust, the amount of which would be extremely difficult, if not impossible, to determine and cannot be adequately compensated by monetary damages alone. Therefore, if you breach or threaten to breach either of those paragraphs, in addition to any other remedies which may be available to the Trust under this Agreement or at law or equity, the Trust may obtain an injunction, restraining order, or other equitable relief against you and such other persons and entities as are appropriate.

Confidentiality; Nonsolicitation. (a) During your employment with the Trust and thereafter, except as required by your duties to the Trust or by law or legal process, you will not disclose or make accessible to any person or entity or use in any way for your own personal gain or to the Trust’s detriment any confidential information relating to the business of the Trust or its affiliates; provided, however, that “confidential information” shall not include information which: (i) is already generally available to, or becomes generally available to, to the public other than as a result of your unauthorized disclosure; (ii) is disclosed to third parties without restriction with the prior permission of the Trust; or (iii) is disclosed to you by a third party who is not an affiliate or employee, or a customer or other business relation of, of the Trust, and who is under no duty of non-disclosure with respect to such information; or (iv) is known within the industry outside of the Trust other than due to a breach of this confidentiality restriction by you. Notwithstanding the above, nothing herein shall restrict your ability (i) to disclose any information required to be disclosed by law or by any governmental agency or to respond truthfully to any governmental agency inquiry or to any legal process, and/or (ii) to discuss matters relating to you and your job duties and responsibilities and/or your compensation and employment arrangements on a confidential basis with your legal counsel, accountant and other advisors, and/or (iii) to discuss Trust matters with the Trust’s inside and outside legal counsel, outside accountants, bankers, investment bankers and other advisors. Upon termination of your employment with the Trust for any reason, you will promptly return to the Trust all confidential materials and property of the Trust or its affiliates over which you exercise any control, but you shall continue to have the right to retain your personal files including, without limitation, any such files that pre-date your Start Date and any data or documents that relate to this Agreement or otherwise relate to your employment and compensation arrangements as an executive officer of the Trust. (b) You will not at any time during your employment with the Trust, and for a period of one year after the termination of such employment for any reason, except in the good faith performance of your duties to the Trust, directly or indirectly, induce or solicit any employee of the Trust to leave the employ of, any independent contractor to terminate any independent contractor relationship with, or any customer, tenant, lender or other party which transacts business with the Trust to adversely change any relationship with, the Trust. (c) Paragraphs 7(a) and (b) above are intended to protect confidential information of the Trust and its affiliates, and relate to matters which are of a special and unique character, and their violation could would cause irreparable injury to the Trust, the amount of which would will be extremely difficult, if not impossible, to determine and cannot be adequately compensated by monetary damages alone. Therefore, if you breach or threaten to breach either of those paragraphs, in addition to any other remedies which may be available to the Trust under this Agreement or at law or equity, the Trust may obtain an injunction, restraining order, or other equitable relief against you and such other persons and entities as are appropriate.

Confidentiality; Nonsolicitation. (a) During your employment with the Trust and thereafter, except as required by your duties to the Trust or by law or legal process, you will not disclose or make accessible to any person or entity or use in any way for your own personal gain or to the Trust’s detriment any confidential information relating to the business of the Trust or its affiliates; provided, however, that “confidential information” shall not include information which: (i) is already generally available to, or becomes generally available to, to the public other than as a result of your unauthorized disclosure; (ii) is disclosed to third parties without restriction with the prior permission of the Trust; or (iii) is disclosed to you by a third party who is not an affiliate or employee, or a customer or other business relation of, the Trust, and who is under no duty of non-disclosure with respect to such information; or (iv) is known within the industry outside of the Trust other than due to a breach of this confidentiality restriction by you. Notwithstanding the above, nothing herein shall restrict your ability (i) to disclose any information required to be disclosed by law or by any governmental agency or to respond truthfully to any governmental agency inquiry or to any legal process, and/or (ii) to discuss matters relating to you and your job duties and responsibilities and/or your compensation and employment arrangements on a confidential basis with your legal counsel, accountant and other advisors, and/or (iii) to discuss Trust matters with the Trust’s inside and outside legal counsel, outside accountants, bankers, investment bankers and other advisors. Upon termination of your employment with the Trust for any reason, you will promptly return to the Trust all confidential materials property of the Trust or its affiliates over which you exercise any control, but you shall continue to have the right to retain your personal files including, without limitation, any such files that pre-date your Start Date and any data or documents that relate to this Agreement or otherwise relate to your employment and compensation arrangements as an executive officer of the Trust. (b) You will not at any time during your employment with the Trust, and for a period of one year after the termination of such employment for any reason, except in the good faith performance of your duties to the Trust, directly or indirectly, induce or solicit any employee of the Trust to leave the employ of, any independent contractor to terminate any independent contractor relationship with, or any customer, tenant, lender or other party which transacts business with the Trust to adversely change any relationship with, the Trust. (c) Paragraphs 7(a) and (b) above are intended to protect confidential information of the Trust and its affiliates, and relate to matters which are of a special and unique character, and their violation could would cause irreparable injury to the Trust, the amount of which would will be extremely difficult, if not impossible, to determine and cannot be adequately compensated by monetary damages alone. Therefore, if you breach or threaten to breach either of those paragraphs, in addition to any other remedies which may be available to the Trust under this Agreement or at law or equity, the Trust may obtain an injunction, restraining order, or other equitable relief against you and such other persons and entities as are appropriate.

Confidentiality; Nonsolicitation. In further consideration for the payment of the Purchase Price and in order to protect the value of the Membership Interests purchased by Purchaser (including the goodwill inherent in the Company as of the Closing), upon the Closing of the transactions contemplated by this Agreement, each Seller agrees as follows: (a) During your employment As an owner of the Membership Interests, each Seller has had access to and contributed to information and materials of a highly sensitive nature (including Company Confidential Information) of the Company and its subsidiary. Each Seller agrees that unless such Seller first secures the written consent of Purchaser, such Seller shall not, and shall not permit its Affiliates to, disclose to others any Company Confidential Information, except (i) if required to do so by applicable Legal Requirements, including a valid court order, or a Governmental Authority; provided that, to the extent legally permitted, such Seller promptly notifies the Company (in advance, to the extent reasonably practicable) of the disclosure of such information and, to the extent applicable, takes reasonable steps to minimize the extent of any such required disclosure and request confidential treatment, or (ii) to enforce or defend such Seller’s rights under this Agreement or the Related Agreements; provided that any Seller shall be permitted to disclose such financial statements of the Company as are necessary for such Seller and its Affiliates to comply with its reporting obligations (as and if applicable) under Regulation S-X, Rule 3-09. For the avoidance of doubt, nothing in this Section 4.11 shall prevent Paramount from disclosing information in accordance with Section 25 of the Paramount Output Agreement or Lions Gate from disclosing information in accordance with Section 25 of the Lions Gate Output Agreement. Each Seller shall, and shall cause its Affiliates to, use all reasonable care to safeguard Company Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft; provided that in no event shall a Seller have an obligation to use a more stringent standard of care with respect to the Company Confidential Information than the standard of care used by such Seller to safeguard its own confidential information. (b) Promptly after the Closing, each of Paramount and Lions Gate shall, and shall cause its Affiliates to, use commercially reasonable efforts to destroy all Company Confidential Information in its possession and control, in whatever form or medium, other than as may be required by applicable Legal Requirements or as may be required to comply with internal document retention and business continuity policies and procedures so long as the Company Confidential Information remains subject to the confidentiality requirements pursuant to Section 4.11(a); provided that (x) nothing in this Section 4.11(b) shall require VII or its Affiliates to destroy any Company Confidential Information used in connection with the Trust continued provision of services pursuant to the Services Agreement and thereafter(y) in no event shall Paramount, Lions Gate or any of their Affiliates or Representatives be required to erase, destroy or return information from any computer systems, hard drives, backup tapes or archival systems, so long as the Company Confidential Information remains subject to the confidentiality requirements pursuant to Section 4.11(a). (c) Purchaser agrees to use commercially reasonable efforts to cause the Company to destroy or cause to be destroyed all Viacom Confidential Information known by the Company to be in the possession and control of the Company and which was obtained by the Company prior to the Closing Date, in whatever form or medium, other than as may be required by applicable Legal Requirements or as may be required to comply with internal document retention and business continuity policies and procedures; provided that (x) nothing in this Section 4.11(c) shall require the Company or Purchaser to destroy any Viacom Confidential Information included in or incorporated by reference in the Company’s contracts or that is reasonably necessary for the Company and its subsidiary to conduct their businesses in the ordinary course consistent with past practice, and (y) in no event shall the Company be required to erase, destroy or return information from any computer systems, hard drives, backup tapes or archival systems. Purchaser agrees that unless Purchaser or the Company first secures the written consent of VII, Purchaser shall not, and shall not permit its Affiliates to, disclose to others any information that is known or reasonably should be known by Purchaser or the Company to constitute Viacom Confidential Information obtained by the Company prior to the Closing Date, except as (i) if required to do so by your duties applicable Legal Requirements, including a valid court order, or a Governmental Authority; provided that, to the Trust extent legally permitted, Purchaser or the Company promptly notifies VII (in advance, to the extent reasonably practicable) of the disclosure of such information and, to the extent applicable, takes reasonable steps to minimize the extent of any such required disclosure and request confidential treatment, (ii) to enforce or defend Purchaser’s rights under this Agreement or the Related Agreements or (iii) to the extent such Viacom Confidential Information was not required to be destroyed pursuant to the first sentence of this Section 4.11(c), to their Representatives or to a bona fide prospective or an actual buyer or financier as well as the Representatives thereof (provided that any such buyer or financier first executes a written confidentiality agreement pursuant to which they/it agree(s) to be bound by law the provisions of this provision or legal processa similar undertaking of confidentiality). Purchaser shall, you will and shall cause the Company to, use all reasonable care to safeguard Viacom Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft; provided that in no event shall Purchaser or the Company have an obligation to use a more stringent standard of care with respect to the Viacom Confidential Information than the standard of care used by Purchaser or the Company (as the case may be) to safeguard its own confidential information. For the avoidance of doubt, the obligations set forth in this Section 4.11 shall not disclose or make accessible extend to any person Viacom Confidential Information in the control or entity possession of Purchaser or use in any way for your own personal gain of its Affiliates (other than the Company and its subsidiary) not obtained as a consequence or to the Trust’s detriment any confidential information relating to the business result of being an owner of membership interests of the Trust Company. (d) During the period beginning on the Closing Date and ending on the one (1) year anniversary of the Closing Date, each of VII and Paramount agrees that it shall not, directly or indirectly through its affiliatescontrolled subsidiaries or any other Person encourage, induce, solicit or attempt to encourage, induce or solicit any of the individuals listed on Schedule 4.11(d)(i) to leave the employ of such Company Entity, and Lions Gate agrees that it shall not, directly or indirectly through its controlled subsidiaries or any other Person encourage, induce, solicit or attempt to encourage, induce or solicit any of the individuals listed on Schedule 4.11(d)(ii) to leave the employ of such Company Entity; provided, however, that “confidential information” this Section 4.11 shall not include information whichpreclude any Seller or its direct and indirect controlled subsidiaries from (A) placing general solicitations not specifically directed at any of the officers or directors of a Company Entity, or (B) hiring any officer or director who contacts such Seller on such individual’s own initiative. (e) VII shall use commercially reasonable efforts to cause, and to cooperate with the Company in respect of, the transfer employees to the Company contemplated to be transferred pursuant to the Services Agreement and not yet transferred as of the date hereof. (f) Each Seller acknowledges and represents that: (i) is already generally available to, or becomes generally available to, sufficient consideration has been given by each party to this Agreement to the public other than as a result of your unauthorized disclosureit relates hereto; (ii) is disclosed to third parties without restriction such Seller has consulted with the prior permission of the Trustindependent legal counsel regarding his or her rights and obligations under this Section 4.11; (iii) is disclosed to you by a third party who is not an affiliate or employee, or a customer or other business relation of, such Seller fully understands the Trust, terms and who is under no duty of non-disclosure with respect to such informationconditions contained herein; or (iv) is known within the industry outside restrictions and agreements in this Section 4.11 are reasonable in all respects and necessary for the protection of the Trust other Company Entities and the Company Confidential Information and goodwill and that, without such protection, the Company Entities’ customer and client relationship and competitive advantage would be materially adversely affected; and (v) the agreements in this Section 4.11 are an essential inducement to Purchaser to enter into this Agreement and they are in addition to, rather than due in lieu of, any similar or related covenants to a breach of this confidentiality restriction by you. Notwithstanding the above, nothing herein shall restrict your ability (i) to disclose any information required to be disclosed by law which such Seller is party or by any governmental agency or to respond truthfully to any governmental agency inquiry or to any legal process, and/or (ii) to discuss matters relating to you and your job duties and responsibilities and/or your compensation and employment arrangements on a confidential basis with your legal counsel, accountant and other advisors, and/or (iii) to discuss Trust matters with the Trust’s inside and outside legal counsel, outside accountants, bankers, investment bankers and other advisors. Upon termination of your employment with the Trust for any reason, you will promptly return to the Trust all confidential materials property of the Trust or its affiliates over which you exercise any control, but you shall continue to have the right to retain your personal files including, without limitation, any such files that pre-date your Start Date and any data or documents that relate to this Agreement or otherwise relate to your employment and compensation arrangements as an executive officer of the Trustit is bound. (bg) You will not If at any time during your employment with a court holds that the Trustrestrictions in this Section 4.11 are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. The parties hereto agree that any breach of the provisions contained in this Section 4.11 will result in serious and for a period of one year after the termination of such employment irreparable injury and therefore money damages would not be an adequate remedy for any reason, except in the good faith performance of your duties to the Trust, directly or indirectly, induce or solicit any employee of the Trust to leave the employ of, any independent contractor to terminate any independent contractor relationship with, or any customer, tenant, lender or other party which transacts business with the Trust to adversely change any relationship with, the Trust. (c) Paragraphs 7(a) and (b) above are intended to protect confidential information of the Trust and its affiliates, and relate to matters which are of a special and unique character, and their violation could cause irreparable injury to the Trust, the amount of which would be extremely difficult, if not impossible, to determine and cannot be adequately compensated by monetary damages alonesuch breach. Therefore, if you in the event of a breach or threaten threatened breach of any provisions of this Section 4.11 that is continuing, the Company and Purchaser, their successors and assigns and any third-party beneficiary to breach either of those paragraphsthis Agreement, in addition to other rights and remedies existing in their favor, shall be entitled to specific performance or injunctive or other relief in order to enforce, or prevent any other remedies which may be available to the Trust under this Agreement or at law or equityviolations of, the Trust may obtain an injunction, restraining order, provisions hereof (without posting a bond or other equitable relief against you and such other persons and entities as are appropriatesecurity).