EXHIBIT 10.1
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CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (the "Agreement") is entered
into by and between DOBI Medical International, Inc., a Delaware corporation
with its principal place of business located at 1200 MacArthur Blvd., Mahwah,
NJ, 07430, ("Company") and Brian Vodicka., whose principal address is 1311
Spyglass Drive, Austin, TX 78746 (Receiving Party").
In consideration of Company's disclosure of Confidential Information (as
defined below) to Receiving Party, which each party acknowledges to be good and
valuable consideration for Receiving Party's obligations hereunder, Company and
Receiving Party hereby agree as follows:
1. The sole and limited purpose for which the disclosures hereunder are being
made is for Receiving Party is in preparation for Receiving Party to be
nominated to the Board of Directors of Company (the "Business Purpose").
2. Receiving Party understands that Company's Confidential Information may be
considered material, non-public information under U.S. federal and state
securities laws and either party could be found in violation thereof if it
takes advantage of such information by (a) trading in the other party's or
any other party's stock, or (b) furnishing information to others in
connection with the trading of such stock. It is further acknowledged that
DOBI Medical is a public reporting issuer and, as such, subject to a broad
range of U.S. federal and state food and drug laws and federal and state
securities laws including, without limitation, prohibitions against
selective disclosure of material, non-public information pursuant to
Regulation FD. It is thereby understood and agreed that DOBI Medical is
relying on this acknowledgement herein with respect to the confidential
treatment regarding all of the Confidential Information which Receiving
Party may obtain from DOBI Medical or develop on behalf of DOBI Medical.
3. "Confidential Information" means nonpublic information of the Company that
should reasonably be understood by the Receiving Party, because of legends
or other markings, the circumstances of disclosure, or because of the
nature of the information itself, to be proprietary and confidential to the
Company, an affiliate of the Company or a third party, and includes,
without limitation, information relating to the Company's, its affiliate's
or a third party's business (including, without limitation, proposals,
business plans, financial information, customer and prospect lists and
information, personnel information and contract information), properties,
methods of operation, software (including, without limitation, source code,
specifications, data, works in process, alpha and beta versions, design
documents and documentation), trade secrets, inventions, discoveries,
know-how and other intellectual property. Confidential Information also
includes such non-public information that was disclosed by the Company to
Receiving Party prior to the date hereof in connection with the Business
Purpose hereof, as well as information currently provided and to be
provided during the term of this Agreement. Confidential Information may be
disclosed in written or other tangible form (including on magnetic or
optical media) or by electronic, oral, visual or other means.
4. Receiving Party understands and acknowledges that such Confidential
Information disclosed to the Receiving Party has been developed or obtained
by the Company by the investment of significant time, effort, and expense,
and that such Confidential Information provides the Company with a
significant competitive advantage in its business. Therefore, the Receiving
Party hereby covenants not to misappropriate or use the Confidential
Information for any reason other than the specified Business Purpose,
including without limitation for personal or commercial gain, for a period
of two (2) years from the date of disclosure or on the date of Receiving
Party's last correspondence or contact in person, phone or electronic media
to Company, whichever is later. The foregoing notwithstanding, any
Confidential Information
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that is designated as a "trade secret" shall be kept confidential by the
Receiving Party for as long as it remains a trade secret under New York
law.
5. Except as provided in Section 6, Receiving Party will, and will so direct
its Representatives (as defined below), not to disclose to any person the
fact that any evaluations, investigations, discussions, or negotiations are
taking place concerning a proposed or possible business relationship, or
any of the terms, conditions, identity of the names of any party's
employees or Representatives involved, or other facts thereto, or comment
on rumors thereon, including the status thereof, unless in the written
opinion of counsel, such disclosure is required by law and then only with
as much prior written notice to the other party as is practical under the
circumstances. The term "person" as used will be interpreted broadly to
include, without limitation, any corporation, partnership, other entity or
individual. All such matters shall be deemed part of the other party's
Confidential Information.
6. Without the clear and express prior written consent of a duly authorized
representative of the Company, Receiving Party agrees to hold in strict
confidence and not to disclose or reveal Confidential Information received
hereunder to any person except for Receiving Party's employees, directors,
counsel, agents and advisors (collectively "Representatives") who are
required to have such Confidential Information in order to perform their
functions in connection with the limited purpose of this Agreement. Each
permitted Representative to whom Confidential Information is disclosed
shall adhere to all aspects of this Agreement. Receiving Party further
agrees not to use any of the Confidential Information received hereunder
except for the Business Purpose(s) set forth in Section 1 hereof.
7. Receiving Party will not copy, alter, modify, dissemble, reverse engineer,
or decompile any Confidential Information received from the Company without
the prior written consent of the Company. Receiving Party agrees to return
to the Company all materials received from Company, together with any
copies that may have been made, promptly upon the request of the Company
or, if not requested earlier, promptly after the purpose(s) for which they
were furnished have been accomplished or abandoned. At such time, Receiving
Party agrees to return to the Company or destroy any materials prepared by
Receiving Party that incorporate any Confidential Information.
8. In the event Receiving Party or anyone to whom Receiving Party supplies the
Confidential Information receives a request under the terms of a subpoena
or order issued by, or in conjunction with litigation pending with a court
of competent jurisdiction or a governmental body to disclose all or any
part of the Confidential Information, Receiving Party agrees, to the extent
lawful, to (a) immediately notify the Company of the existence, terms and
circumstances surrounding such a request; (b) consult with Company on the
advisability of taking legally available steps to resist or narrow such
request; (c) if disclosure of such Confidential Information is required,
furnish only that portion of the Confidential Information which, in the
opinion of counsel, Receiving Party is required to disclose; and (d) use
its best efforts to permit the Company at the Company's expense to obtain
an order or other reliable assurance that confidential treatment will be
accorded to such portion of the disclosed Confidential Information which
the Company so designates.
9. Intentionally Omitted.
10. Confidential Information shall not include information that (a) is now or
later becomes generally known (other than as a result of Receiving Party's
breach of this Agreement); (b) was developed by Receiving Party prior to
this Agreement and is evidenced by Receiving Party's own tangible records;
(c) Receiving Party lawfully obtains from any third party who has lawfully
obtained such information; or (d) is later published or generally disclosed
to the public by DOBI Medical. Receiving Party shall bear the burden of
showing that any of the foregoing exclusions applies to any such
information.
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11. Nothing contained in this Agreement shall be construed as creating any
obligation on the part of either party to enter into a business
relationship with the other party, or any obligation to refrain from
entering into a business relationship with any third party, except as set
forth herein. Nothing contained in this Agreement shall be construed as
creating a joint venture, partnership or employment relationship between
Company and Receiving Party, it being understood that Disclosing and
Receiving Party are independent contractors vis-a-vis one another. Except
as specified herein, no party shall have the right, power, or implied
authority to create any obligation or duty, express or implied, on behalf
of any other party hereto.
12. The Confidential Information provided hereunder is provided "AS IS, WHERE
IS." Company makes no kind of warranties or representations in connection
with such Confidential Information, and hereby specifically disclaims all
other expressed or implied warranties, including the implied warranties of
merchantability and fit for a particular use or purpose.
13. This Agreement sets forth the entire understandings and agreements of the
parties with respect to the subject matter hereof and supersedes all other
oral or written representations and understandings. This Agreement may not
be amended or modified, except in writing signed in advance by authorized
representatives of Company and Receiving Party. No waiver of any term or
condition or of any breach hereof shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. The formation, interpretations, and performance of this
contract shall be governed by the laws of the State of New York, without
regard to the conflicts of law rules of such state. Nothing herein shall be
interpreted as guaranteeing or otherwise assuring Consultant's continued
employment with DOBI Medical. Breach of the terms hereof may give rise to
irreparable harm, and it is agreed that enforcement of the terms hereof may
be by means of injunction or other equitable remedy (without having to post
a bond or other surety), in addition to any other remedies available. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, successors and assigns. The parties agree to accept
service of process at its principal office or residence, and agree to the
personal jurisdiction, forum, and venue to be held in the applicable
federal and state courts in New York, NY.
14. Each party warrants and represents that it has carefully read and
understood this Agreement, and each party acknowledges receipt of a copy
hereof. Each person executing this Agreement warrants and represents by
his/her signature that he or she has the authority to enter into this
Agreement on behalf of the person, firm, or corporation, set forth below.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed
this Agreement as of August 24, 2004.
DOBI Medical International, Inc. Receiving Party
By: /s/ Phillip C. Thomas By: /s/ Brian Vodicka
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Phillip C. Thomas Brian Vodicka
Chief Executive Officer