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, ident
