Confidentiality Agreement

This Confidentiality Agreement will confirm our mutual understanding in connection with our providing, and your receipt of, information regarding the number-designated Company listed below ("The Company").

BE IT KNOWN, that Calhoun or Company may furnish to Recipient “Information” (as defined below) and may further allow Recipient the right to inspect and evaluate the business of Company and/or interview employees or representatives of Company specifically and only for the purpose of evaluating a possible business transaction between Recipient and Company (a “Transaction”), which is all conditioned on the following:

1. Recipient acknowledges that neither Company nor Calhoun, and none of the respective officers, directors, employees, affiliates or controlling persons of Company or Calhoun, makes any express or implied representation or warranty as to the completeness and accuracy of any Information, and Recipient agrees that none of such persons shall have any liability to Recipient or any of Recipient’s Representatives (as defined below) relating to or arising from Recipient’s or such Representatives’ use (consistent with the terms of this Agreement) of any Information or for any errors therein or omissions therefrom. Recipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by Company to Recipient in any definitive agreement relating to the Transaction, subject to the terms and conditions of such agreement.
2. The term “Information” means any data, statistics, prototypes, samples, facts, figures, material, or documents relating to the affairs of Company that is disclosed, either directly or indirectly, to Recipient in writing, orally or by inspection of tangible objects, including, but not limited to: (i) trade secrets, know-how, research, product plans, services, customers, markets, software, source code, inventions, processes, designs, drawings, marketing plans; (ii) financial information; (iii) the identity of Company; (iv) the fact that Company has retained Calhoun as an advisor; (v) the fact that Company may be considering a number of strategic alternatives; (vi) the fact that information has been provided or discussions are taking place; and (vii) the Confidential Information Memorandum for Company prepared by Calhoun (collectively known as “Information”). The Confidential Information Memorandum to be provided to Recipient shall not be reproduced or distributed without the prior written consent of Calhoun or the Company.
3. For the purposes of this Agreement, Information shall not include:  (a) information that is published or otherwise becomes available to the general public through no act or failure to act on the part of Recipient; (b) information that was in the possession of the Recipient prior to the time of disclosure or is subsequently acquired by Recipient from a third party that has a bona fide right to make such information available without restriction; or (c) information that can be demonstrated to have been independently developed by Recipient without use or reference to Information.
4. Recipient agrees to hold all Information in trust and confidence. Recipient agrees that the Information shall be used only for the purpose stated herein and shall not be used for any other purpose or disclosed to any other party except as provided herein.
5. Nothing shall preclude Recipient from disclosing Information which Recipient is required to disclose by law, governmental regulation or governmental or judiciary ruling, provided that Recipient (i) notifies Company of the requirement promptly after Recipient becomes aware of the requirement, (ii) upon request of Company, cooperates with Company in seeking a protective order for the Information to be disclosed and (iii) limits any disclosure to that which is legally required to be disclosed.
6. Recipient agrees to share Information only with Recipient’s affiliates, officers, employees, professional advisors and agents (“Representatives”) who are required to have the Information in order to assist Recipient in its evaluation of the Transaction and who have agreed to treat and hold the Information in accordance with the terms of this Agreement. Recipient is responsible for any unauthorized disclosure, use of or access to Information by any of its Representatives. Recipient will be responsible for any breach of this Agreement by all those who gain access to Information via Recipient (including all of its Representatives), and Recipient agrees to indemnify and hold harmless Company and its representatives from and against any and all loss, damage, cost or expense (including reasonable attorney’s fees and disbursements), arising out of or resulting from Recipient’s or its Representatives’ breach of this Agreement.
7. Upon demand by Calhoun or Company, all Information, including the Confidential Information Memorandum for Company, copies, written notes, photographs, and memoranda, produced or taken by Recipient in connection with its investigation of Company, shall be destroyed or returned to Company, at Company’s option, within ten (10) days of such demand. Destruction of materials containing Information shall be confirmed by Recipient to Calhoun in writing. Notwithstanding the foregoing, any Information that is stored on routine back-up media for the purpose of disaster recovery, regulatory oversight or other legitimate business purposes will only be subject to destruction in the ordinary course.  Any Information retained under this Section 7 shall remain subject to the confidentiality requirements included herein.
8. Without the written consent of Company, Recipient and its Representatives shall not (directly or indirectly) for a period of 1 year from the date hereof solicit for employment any then current employee of Company or any of its affiliates that Recipient becomes aware of in connection with its consideration of the Transaction. Nothing contained herein shall preclude the hiring of any such employee who: (i) Recipient was in discussions with regarding possible employment prior to the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not targeted specifically at Company or its employees; (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Company; (iv) initiated a discussion on its own volition regarding such employment without any direct or indirect solicitation by Recipient; or (v) any employee of Company that Recipient personally knew prior to the date of this Agreement.
9. Nothing contained in this Agreement shall prohibit, restrict or otherwise limit in any manner, Recipient’s or any of its affiliates’ rights to directly or indirectly (i) compete for the same business as the Company for, by, with or through any person or otherwise maintain or initiate business relationships with any person, (ii) develop, use, market or acquire products or services similar to or competitive with the Company’s products or services or to enter into any business transaction with any other entity which owns or has rights to any such similar products or services, or (iii) use in the ordinary course of business its general knowledge, skills and experience, as long as, in the case of clauses (i), (ii) and (iii), such rights are exercised without the use of the Information in breach of this Agreement
10. Calhoun will arrange for appropriate contacts for due diligence and all other proposals, and any communications regarding a Transaction or requests for information will be submitted exclusively to Calhoun.
11. No failure or delay by Company in exercising any right, power, or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Recipient agrees that in the event of any proven breach of this Agreement, Calhoun and Company will suffer irreparable injury, and no remedy at law will afford Calhoun Company adequate protection against, or appropriate compensation for, such injury. Accordingly, in the event of a breach, Calhoun and/or Company shall be entitled to seek specific performance of Recipient’s obligations under this Agreement, and such further injunctive relief as may be granted by a court of competent jurisdiction.
12. Neither Company nor any of its representatives (including Calhoun) shall be under any obligation to enter into any further agreements with Recipient or its Representatives as a result of this Agreement. Company and its representatives shall be free at all times to conduct the process in respect of the Transaction in their sole discretion and to enter into any agreements, including without limitation in respect of the Transaction, with any other party. Any such activities by Company or its representatives shall not be a breach of this Agreement.
13. This Agreement shall be governed by the laws of the State of Minnesota. Company reserves the right to assign all of its rights under this Agreement to any of its affiliates or to a successor in interest to the business of Company, including the right to enforce this Agreement. Recipient hereby consents to such assignment.  Recipient has no right to assign this Agreement.
14. Unless otherwise provided in this Agreement, the obligations of each of the parties under this Agreement shall terminate on the first anniversary of the date hereof.  The termination of a party's obligations under this Agreement shall not relieve such party from any damages, losses, costs or liability due to the other party arising out of or resulting from any breach of this Agreement by such party or any of its Representatives on or prior to the date of termination.

Upon submission, this Agreement shall become a binding agreement and covenant of Recipient.