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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, identi
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