Exhibit 10.13
NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement ("Agreement") is effective as of the 31st
day of July, 2003, by and between Town Creek Industries, Inc., a wholly owned
subsidiary of Solomon Technologies, Inc. ("TCI") and Pinetree (Barbados) Inc.
("Pinetree").
EXPLANATION
Pinetree filed a lawsuit against Solomon Technologies, Inc. ("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 (the "NOTES"). Since the
date of the Lawsuit, the parties have been engaged in settlement discussions in
order to determine, among other things, a mutually agreeable structure of
securing the current indebtedness owed to Pinetree under each of the Notes. In
furtherance of settling the Lawsuit, each of STI and TCI have agreed to pledge
its intellectual property, among other property, as collateral to secure the
outstanding indebtedness owed under the Notes. Pursuant to the terms and
conditions of this Agreement, TCI may provide certain proprietary information to
Pinetree in order to finalize the settlement among the Parties. TCI 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 TCI 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 TCI, 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 TCI's performance under any settlement
documents which the parties may execute. Unless otherwise expressly authorized
to the contrary by TCI 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 TCI under the terms of the Settlement Documents
solely for the purpose of making an internal decision about whether to convert
the Convertible 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 TCI, which consent
shall be in TCI's sole and absolute discretion, and will immediately notify TCI
in writing of any unauthorized disclosure of the Proprietary Information. At any
time upon TCI's request, Pinetree shall promptly redeliver to TCI, or destroy at
TCI'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 TCI or on TCI's
behalf. The redelivery or destruction of the Proprietary Information shall be
certified by Pinetree in writing to TCI, 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 TCI 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
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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 TCI of the existence, terms and circumstances surrounding such a
request; (b) consult with TCI 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 TCI, at TCI'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 TCI, 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.
TCI has no obligation to disclose any Proprietary Information. TCI 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 TCI may at any time reasonably request in order to assure and confirm
unto TCI 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. TCI 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 TCI.
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
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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 TCI. Any attempted assignment
in violation of this Agreement 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.
TOWN CREEK INDUSTRIES, 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 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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