TRI-PARTY MUTUAL CONFIDENTIALITY, NON-DISCLOSURE,AND NON-CIRCUMVENTION AGREEMENT

 

ENTERED INTO on the day and year, last below written:
BY AND BETWEEN:
Smart Phases, Inc., dba Novacab, 213 Connecticut Avenue, Plattsburgh, NY, (Discloser #1)
AND:
Dominion Development Group, LLC, 476 Delaware Ave, Egg Harbor Township, NJ 08234 (Discloser #2)
AND:
Recipient, hereinbelow signed

In connection with our mutual interest in having discussions regarding doing business in the context of a collaboration with NOVACAB INC. ( the “transactions”), one or more of the parties to this Agreement (individually called the “Discloser”) is providing to the other party (individually called the “Recipient”) or its Representatives (as defined below) with certain information in connection with the Transaction concerning the Discloser which is either non- public, confidential or proprietary in nature and are providing Recipient with access to certain of Discloser’s executives and advisors. This information previously or hereafter furnished to Recipient or its Representatives, together with analyses, compilations, forecasts, studies or other documents, prepared by Recipient or its Representatives which contain or otherwise reflect such information or Recipient’s review of the affairs of, or interest in, Discloser is hereafter referred to as the "Information". For the purposes of this Agreement, the term "Representatives" means a party’s directors, officers, employees and those of its agents, lawyers, accountants, consultants, bankers and financial advisors that have a need to know the Information for the purpose of evaluating the Transaction. In consideration of Discloser furnishing Recipient with the Information, Recipient agrees that:

• Confidentiality
   

  The Information will be kept confidential and will not, without Discloser’s prior written consent, be disclosed by Recipient (except to Recipient’s Representatives on the terms described below), or by its Representatives, in any manner whatever, in whole or in part, and shall not be used by Recipient or its Representatives other than in connection with Recipient’s evaluation of the Transaction, except and only to the extent permitted in section 4. Moreover, Recipient agrees that it may reveal the Information only to those of its Representatives who are informed by Recipient of the confidential nature of the Information and who agree to be bound by and act in accordance with the terms and conditions of this Agreement. Recipient will make and cause its Representatives to make all necessary and appropriate efforts to safeguard the information from disclosure to anyone other than as permitted hereby.

• Non-disclosure
   

  Without the prior written consent of Discloser, except and only to the extent permitted in section 4, Recipient and its Representatives will not disclose to any person the fact that the Information has been made available, that discussions or negotiations are taking place or have taken place concerning a Transaction or any of the terms, conditions or other facts with respect to any such Transaction, including the status thereof; provided that following a public announcement in respect of a Transaction, Recipient may disclose the fact that Information has been made available to it and the fact that discussions or negotiations have taken place or are taking place in respect of a Transaction but, in so doing, no disclosure of the Information or the substance of the discussions or negotiations shall be made by Recipient. Except as may be otherwise required by law, judicial or governmental order, discovery request, other legal process, or applicable stock exchange requirements, any public notice to third parties and any other public disclosure concerning a Transaction shall be made only with the prior approval of Discloser. In respect of public disclosure required by any Securities regulatory authorities, such disclosure shall be made in consultation with Discloser.

• Non-Circumvention:
   

  Each Party agrees not to directly or indirectly contact, deal, transact, or otherwise be involved with any corporation, partnership, proprietorships, trust, individuals, or other entities introduced by the other Party without the specific written permission of the introducing Party.

• Required Disclosure
   

  In the event that Recipient or anyone to whom Recipient transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Information, Recipient will provide Discloser with prompt notice so that Discloser may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained or Discloser waives compliance with the relevant provisions of this Agreement, Recipient will furnish only that portion of the Information which it is advised by counsel is legally required and will, at Discloser’s request, reasonably cooperate with Discloser’s efforts to obtain reliable assurance that confidential treatment will be accorded to the Information.

• Return of Information
   

  All copies of the Information (including in writing, or in retrievable electronic or magnetic media, or in any other form), except for that portion of the Information which consists of analyses, require absolute discretion, and shall be returned upon request of the disclosing party.

• Exception
   

  The term "Information" shall not include such portions of information which

  1. are or become generally available to the public other than as result of a disclosure by Recipient or its Representatives in violation of this Agreement, or
  2. are received from an independent third party on a non-confidential basis and where it is not known by Recipient to be prohibited from disclosing such information to Recipient by legal, contractual, fiduciary or other obligations to Discloser or any other person, or
  3. were in Recipient’s possession on a non-confidential basis before it received such information from Discloser, or
  4. were independently developed by Recipient or on its behalf.

• No Adverse Action
   
  During the period commencing on the date of this Agreement and terminating on the later of
  1. three (3) years after the date that a Transaction is consummated,
  2. three (3) years after the date of disclosure of the last portion of Information pursuant to this Agreement, and
  3. three (3) years after the date, each of the parties to this Agreement will not, directly or indirectly:
  1. solicit any senior officers or employees of the other party with a view to engaging their services as employees or under a contract for services or otherwise to induce them to leave their offices or employment with said party.
  2. other than in the normal course of business and without use of the Information, solicit any existing customers of the other party for contracts or work of the type presently done or currently being bid on by said party for such customers.

• Governing Law
   

  This Agreement shall be governed and construed in accordance with the laws of the State of New Jersey and the United States of America applicable therein. Discloser and Recipient hereby irrevocably attorn to the exclusive jurisdiction of the courts of the State of New Jersey and all courts competent to hear appeals therefrom.

• Remedies
   

  Recipient acknowledges that disclosure of the Information except as permitted herein may cause significant damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and Recipient hereby consents to the granting of injunctive or other equitable relief in favour of Discloser upon proper proofs, in addition to any other remedy Discloser may be entitled to.

• Term
   

  This Agreement shall terminate on the later of

  1. three (3) years after the date that a Transaction is consummated,
  2. three (3) years after the date of disclosure of the last portion of Information pursuant to this Agreement, and
  3. three (3) years after the date, if any, that one of the parties indicates to the other party in writing or otherwise that it will not pursue a Transaction.

• Legal obligations
   

  Discloser and Recipient agree that unless and until a definitive agreement between them with respect to a Transaction has been executed and delivered, neither Discloser nor Recipient will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this or any written or oral expression except, in the case of this Agreement, for the matters specifically agreed to herein. The agreement set forth in this paragraph may be modified or waived only expressly and in writing signed by both parties to this Agreement. The parties hereto further acknowledge and agree that either of them reserves the right, in its sole and absolute discretion, to reject any or all proposals and to terminate discussions and negotiations with, or directly or indirectly involving, the other party at any time.

• Waivers
   

  It is understood and agreed that no failure or delay 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 hereunder. The provisions hereof may be waived only by instrument in writing executed by both parties and shall not be inferred from any other act or course of conduct.

• Non-Assignable
   

  Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or transfer this Agreement, without the other party’s prior written consent, and any attempted assignment, transfer or delegation without such prior written consent shall be voidable at the sole option of such other party. Without limiting and subject to the foregoing, this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by and against the parties and their respective successors and assigns.

• Disputes
   

  Any disputes relating to the performance of this Agreement shall be resolved in the following order of preference:

  1. by good faith negotiation between the Parties;
  2. by non-binding mediation using a neutral mediator who is acceptable to both Parties;
  3. by binding arbitration using a neutral arbitrator who is acceptable to both Parties. In all cases the location shall be one that is acceptable to both Parties and both Parties shall share all costs equally.

• Language:
   

  The parties hereto specifically required that this Agreement and all related documents be written in English.

• Counterparts:
   

  This Agreement may be executed in counterparts and by facsimile, each of which so executed shall be deemed to be an original, and together which shall be deemed to be but one and the same instrument.

IN WITNESS WHEREOF,this Agreement has been executed by the parties hereto as of the date last below written.

     

For: Recipient

 

I hereby agree that my digital signature shall serve to be as enforceable as my original signature.