Exhibit 10.12
NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement ("Agreement") is effective as of the 31st
day of July, 2003, by and between Solomon Technologies, Inc. ("STI") and
Pinetree (Barbados) Inc. ("Pinetree").
EXPLANATION
Pinetree filed a lawsuit against STI on December 20, 2002 in United
States District Court for the Southern District of Maryland (later moved to the
United States District Court for Northern District of Maryland), captioned as
Civil Case No. 8:02-cv-04141 (the "Lawsuit"), in which Pinetree sought, among
other things, payment of the outstanding balance under two Unsecured Convertible
Promissory Notes issued by STI to Pinetree, dated January 19, 2001 and June 18,
2001, respectively. Since the date of the Lawsuit, the parties have been engaged
in settlement discussions. Pursuant to the terms and conditions of this
Agreement, STI may wish to provide certain proprietary information to Pinetree
in furtherance of those settlement discussions. STI may also provide information
to Pinetree in accordance with the terms of a Memorandum of Understanding and
other settlement documents between the parties dated as of, or about, the date
of this Agreement (collectively, the "SETTLEMENT DOCUMENTS")
AGREEMENT
In consideration of the mutual covenants and conditions contained in
this Agreement, and for other good and valuable consideration, the adequacy of
which is mutually acknowledged, the parties agree under seal as follows:
1. DEFINITION OF PROPRIETARY INFORMATION. As used in this Agreement,
the term "Proprietary Information" means any confidential, non-public or
proprietary information, technology or documentation, including without
limitation, drawings, designs, business plans and proposals, ideas and
prototypes that may be disclosed by STI to Pinetree, whether such is of a
technical, commercial, organizational, scientific, financial or business nature.
2. TERM OF DUTY NOT TO DISCLOSE. Unless a particular portion of
Proprietary Information becomes nonproprietary as provided in Section 4(a)
hereof, or unless otherwise authorized in a written agreement signed by an
authorized officer of STI, Pinetree has a duty to protect each particular
portion of Proprietary Information in for a period of five (5) years from the
date of this Agreement, provided that Proprietary Information which constitutes
a trade secret under applicable law shall be protected as long as the
Proprietary Information qualifies as a trade secret under Maryland law.
3. USE RESTRICTIONS.
a. SOLE PURPOSE. Pinetree may use the Proprietary Information
solely for the purpose of evaluating the settlement discussions, or to evaluate
such information in connection with STI's performance under any settlement
documents which the parties may execute. Unless
otherwise expressly authorized to the contrary by STI in a prior signed writing,
Pinetree shall not, either directly or indirectly: (a) use, apply, reveal,
report, publish or otherwise disclose any of the Proprietary Information to, or
for the benefit of, Pinetree or any third party; (b) use or incorporate any of
the Proprietary Information in any products or services; or (c) assist, act as
an agent for, or act as an advisor or consultant to, any person or entity for
the purpose of developing, marketing or selling any product or service that
incorporates any of the Proprietary Information. Without limiting the foregoing,
Pinetree may use the names of investors provided by STI under the terms of the
Settlement Documents solely for the purpose of making an internal decision about
whether to convert the Convert Indebtedness then outstanding under the terms of
the Convertible Promissory Note between the parties dated as of, or about, the
date of this Agreement, and agrees not to contact those investors.
b. DEGREE OF CARE. Pinetree must protect the Proprietary
Information from unauthorized use or disclosure by exercising the same degree of
care that Pinetree uses with respect to information of its own of a similar,
highly valuable nature, and Pinetree must, at minimum, use at least reasonable
care.
c. DUPLICATION. Pinetree shall not copy, duplicate, replicate,
decompile or reverse engineer in any manner whatsoever (whether physically,
electronically, in writing or otherwise), in whole or in part, any part of the
Proprietary Information without the prior written consent of STI, which consent
shall be in STI's sole and absolute discretion, and will immediately notify STI
in writing of any unauthorized disclosure of the Proprietary Information. At any
time upon STI's request, Pinetree shall promptly redeliver to STI, or destroy at
STI's direction, all written material in any media or format whatsoever
containing, reflecting or in any way derived from the Proprietary Information
(including notes, summaries, copies, extracts or other reproductions, in whole
or in part), regardless of whether the material was prepared by STI or on STI's
behalf. The redelivery or destruction of the Proprietary Information shall be
certified by Pinetree in writing to STI, and shall not in any way relieve
Pinetree of its obligation of confidentiality.
4. EXCEPTIONS.
a. GENERAL EXCEPTIONS. The disclosure and use restrictions
imposed in this Agreement do not apply to Proprietary Material that: (a)
Pinetree can show by documentary evidence was already in Pinetree's possession
before the disclosure hereunder to Pinetree; (b) is hereafter disclosed to
Pinetree by a third party who has no duty of confidentiality to STI in respect
of it; or (c) is or becomes generally available to the public through no act or
default on Pinetree's part. Proprietary Material that comprises a combination of
features shall not be within any of the exceptions set forth above merely
because individual features are known or received by Pinetree or are in or fall
into the public domain, but only if the combination is know or received by
Pinetree or is in or falls into the public domain.
b. DISCLOSURE UPON REQUEST OF GOVERNMENT. In the event that
Pinetree receives a request to disclose all or any part of the Proprietary
Information under the terms of a subpoena or other order issued by a court of
competent jurisdiction or by another governmental agency, Pinetree shall: (a)
promptly notify STI of the existence, terms and circumstances surrounding such a
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request; (b) consult with STI on the advisability of taking steps to resist or
narrow such request; (c) if disclosure of such Proprietary Information is
required, furnish only such portion of the Proprietary Information as Pinetree
is advised by counsel is legally required to be disclosed; and (d) cooperate
with STI, at STI's expense, in its efforts to obtain an order or other reliable
assurance that confidential treatment will be accorded to such portion of the
Proprietary Information that is required to be disclosed.
c. OWNERSHIP; WARRANTIES. Pinetree agrees that all Proprietary
Material disclosed shall remain the property of STI, and nothing herein shall be
construed as the grant of a license or any other right, either directly or
indirectly, by implication, estoppel or otherwise, to any Proprietary Material.
STI has no obligation to disclose any Proprietary Information. STI makes no
representations or warranties as to the accuracy or completeness of the
Proprietary Material, and shall have no liability to Pinetree or its
Representatives resulting from Pinetree's use of the Proprietary Material,
except as may be expressly set forth in any subsequent, definitive written
agreement between the parties. This Agreement does not create an agency,
partnership, joint venture or other like relationship.
5. FURTHER ASSURANCES; WAIVER. Pinetree agrees to do such further acts
and to execute and deliver such additional agreements and instruments from time
to time as STI may at any time reasonably request in order to assure and confirm
unto STI its rights, powers and remedies conferred in the Agreement. It is
understood and agreed that 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 of
any right, power or privilege.
6. LAW; FORUM. This Agreement will be governed by and construed in
accordance with the laws of the State of Maryland, without regarding to its
choice of law provisions. The parties further agree and consent to the exclusive
jurisdiction of the courts of Maryland; thus, in the event that either party
initiates an action pursuant to or otherwise governed by this Agreement, the
exclusive jurisdiction of such action shall be in Maryland. Notwithstanding the
foregoing, either party may enforce any judgment rendered by such court in any
court of competent jurisdiction. STI may take any necessary action to compel
specific performance of this Agreement or to enjoin any violation of this
Agreement so that Proprietary Material is not used in any manner to harm or
adversely affect STI.
7. CONSTRUCTION. If for any reason any provision of this Agreement
shall be deemed by a court of competent jurisdiction to be legally invalid or
unenforceable, the validity, legality and enforceability of the remainder of
this Agreement shall not be affected, and such provision shall be deemed
modified to the minimum extent necessary to make such provision consistent with
applicable law and, in its modified form, such provision shall then be
enforceable and enforced. Headings are for reference purposes only and in no way
define, limit, construe or describe the scope or extent of such section.
8. ASSIGNMENT. No rights or duties of Pinetree under this Agreement may
be assigned without the prior written consent of STI. Any attempted assignment
in violation of this Agreement
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shall be deemed null and void AB INITIO. Subject to the foregoing, this
Agreement shall be binding upon the parties and their respective
Representatives, successors and assigns.
9. INTEGRATION. This Agreement contains the entire agreement of the
parties and supersedes all other agreements, negotiations and proposals, written
and oral, between the parties concerning the above-described Proprietary
Information. This Agreement may only be modified by a written document signed by
authorized officers of both parties. This Agreement may be executed in two (2)
or more counterparts, by manual or facsimile signature, each of which shall be
an original and all of which taken together shall constitute one and the same
agreement.
SOLOMON TECHNOLOGIES, INC. PINETREE (BARBADOS) INC.
By: /S/ XXXXX X. TETHER By: /S/ DR. J. XXXXXX XXXXXX
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Typed Name: Xxxxx X. Tether Typed Name: Dr. J. Xxxxxx Xxxxxx
Title: President and CEO Title: President
(Authorized representative) (Authorized representative)
Date: July 31, 2003 Date: August 12, 2003
PINETREE (BARBADOS) INC.
By: /S/ XXXXX XXXXXXXX
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Typed Name: Xxxxx Xxxxxxxx
Title: Director
(Authorized Individual)
Date: July 31, 2003
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