Proprietary information clause samples

2.Proprietary Information. As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or proprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp or legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the Recipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is disclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if (i)it would be apparent to a reasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, that such information is of a confidential or proprietary nature the maintenance of which is important to the Disclosing Party or if (ii)the Disclosing Party, within 30 days after such disclosure, delivers to the Recipient a written document or documents describing such Proprietary Information and referencing the place and date of such oral, visual or written disclosure and the names of the Representatives of the Recipient to whom such disclosure was made. In addition, the term “Proprietary Information” shall be deemed to include: (a)any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its Representatives pursuant hereto; and (b)the existence or status of, and any information concerning, the discussions between the parties concerning the possible establishment of a business relationship.

the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed of the confidential nature of such information and of the terms of this Agreement and who are bound to maintain the confidentiality of such information. In any event, the Recipient shall be responsible for any breach of this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of the Proprietary Information. Notwithstanding anything contained in this Agreement to the contrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required in order for the Recipient to comply with a valid order of a court or other governmental body having jurisdiction or applicable laws and regulations, provided that the Recipient provides, when practicable, reasonable prior written notice of such required disclosure to the Disclosing Party and, at the Disclosing Party’s request and expense, makes a reasonable effort to assist the Disclosing Party’s reasonable and lawful actions to avoid and/or minimize the extent of such disclosure. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit Tetraphase from providing any information to AcelRx Pharmaceuticals, Inc. (“AcelR:x”) under Sections 4.4, 5.2(b) and 5.2(c) or otherwise complying with its obligations under Sections 4.4, 5.2(b) and 5.2(c) of that certain Agreement and Plan of Merger, dated March15, 2020, among AcelRx, Consolidation Merger Sub, Inc. and Tetraphase.

6.Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right to use, the Disclosing Party’s Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights therein, by implication or otherwise.

7.Return of Proprietary Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party or destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In addition, the Recipient shall destroy: (i)any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the Disclosing Party, and (ii)any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in electronic form or cannot otherwise be returned to the Disclosing Party. Notwithstanding the foregoing, the Recipient and each of its Representatives shall be permitted to retain (a)one copy of the Disclosing Party’s Proprietary Information for legal purposes or to determine compliance with the obligations of this Agreement and (b)any Proprietary Information that is located on backup tapes or archival systems that are not commonly accessible or that require Recipient or its Representatives to erase or delete information using special programs or techniques, in each case, subject to its obligations of confidentiality with respect thereto under this Agreement. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.

2. Confidential or Proprietary Information. “Confidential or Proprietary Information” means any information or data disclosed by either the Company or the Contracting Party (each a “Disclosing Party”) to the other party (each a “Recipient”), including, but not limited to, (i)technology, ideas, concepts, drawings, designs, inventions, discoveries, improvements, patents, patent applications, specifications, trade secrets, prototypes, processes, notes, memoranda and reports, or (ii)visual representations concerning the Disclosing Party’s past, present or future research, technology, know-how, and concepts, or (iii)computer programs, software code, written documentation, products, information concerning vendors, members, customers, prospective customers, employees and prospective employees, market research, sales and marketing plans, distribution arrangements, financial statements, financial information, financing strategies and opportunities and business plans, all of which relate directly or indirectly to the Disclosing Party’s products, services or business. If any Confidential or Proprietary Information is disclosed orally or by observation or viewing, it shall be identified as proprietary prior to such disclosure and after disclosure it shall be reduced to writing in summary form within 30 days thereafter and delivered to the Recipient.

5. Disclosure by Law. In the event the Recipient or its Representatives are requested or required by law, regulation, regulatory authority, judicial or governmental order or investigative demand, subpoena or similar process to disclose the Confidential or Proprietary Information, such Recipient or Representative shall provide the Disclosing Party with prompt written notice, if permissible, of such request or requirement and the documents requested thereby so that the Disclosing Company may seek an appropriate protective order at its sole cost and expense. In the event the Disclosing Party determines to seek such protective order or other remedy, the Recipient and its Representatives, as applicable, will cooperate with the Disclosing Party, at the Disclosing Party’s sole cost and expense, in seeking such protective order or other remedy. If, failing the entry of a protective order, the Recipient and its Representatives, as applicable, is upon the advice of counsel, required to disclose Confidential and Proprietary Information, the Recipient and its Representatives, as applicable, may disclose that portion of the Confidential and Proprietary Information that is required to be disclosed and will exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to that portion of the Confidential and Proprietary Information that is being disclosed at the sole cost and expense of the Disclosing Party. In any event, the Recipient and its Representatives will not oppose action by the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information. Notwithstanding anything to the contrary contained herein, the Recipient and its Representatives (i)may disclose Confidential and Proprietary Information, to the extent required, in connection with routine supervisory audits or regulatory examinations without any liability hereunder, and (ii)shall not be required to provide notice to the Disclosing Party or any other individual or entity in the course of any routine supervisory audit or regulatory examination; provided that such routine audit or supervisory audit or examination does not target the Disclosing Party, the Purpose or the Confidential and Proprietary Information.

Recipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other than to its employees and agents who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall be responsible to Discloser for any inappropriate disclosure or use by such employees and agents. Recipient shall not use any Proprietary Information for any purpose other than the Purpose. Recipient shall take the same degree of care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary Information. Recipient shall not make any copies of the Proprietary Information except to the extent reasonably necessary to carry out the Purpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse engineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business relationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth herein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business relationship or other arrangement, unless otherwise agreed to by the parties in writing. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose the existence or substance of the discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto), without the prior written consent of the other party.

The obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to the extent such Proprietary Information: (a)is or becomes publicly known through no act or omission of Recipient (or of any of its employees or agents); (b) was rightfully known by Recipient before receipt from Discloser, as evidenced by Recipient; (c)becomes rightfully known to Recipient without confidential or proprietary restriction from a source other than Discloser that, to the best of Recipient’s knowledge, does not owe a duty of confidentiality to Discloser with respect to such Proprietary Information; or (d)is independently developed by Recipient without the use of or reference to the Proprietary Information of Discloser, as evidenced by Recipient. In addition, Recipient may use or disclose Proprietary Information to the extent (i)approved in writing by Discloser or (ii)Recipient is legally compelled to disclose such Proprietary Information, provided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable advance notice of any such disclosure, to the extent feasible and permitted by law, and shall cooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Proprietary Information. Further, notwithstanding Section3, each party may disclose the terms and conditions of this Agreement: (A)as required by applicable securities or antitrust laws or stock exchange rules, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (B)in confidence, to legal counsel; (C)in confidence, to accountants, banks, and financing sources and their advisors; and (D)in connection with the enforcement of this Agreement or any rights hereunder.

the information to the Receiving Party, or (c) was developed independently by the Receiving Party or any of its Representatives without using any Proprietary Information. For purposes of this letter agreement, the term “Affiliate” or “Affiliates” shall mean, with respect to any person, any other person controlling, controlled by or under common control with such person. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting or other securities, by contract or otherwise.

Each Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Disclosing Party, and the Disclosing Party has the exclusive right, title, and interest to its Proprietary Information. No right or license, by implication or otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this letter agreement.

9. No License or Conveyance of Proprietary Information. You agree that no license or conveyance to you or any of your affiliates or Representatives of any patent, copyright, trade secret, trademark, domain name or other intellectual property right of the Company or its Representatives in the Proprietary Information or otherwise is granted or implied by this Agreement.

If Staples determines that it does not wish to proceed with the Transaction, it will promptly advise Essendant of that decision. In that case, or in the event that Essendant, in its sole discretion, so requests in writing, Staples will promptly return all Proprietary Information, including all copies, reproductions, summaries, analyses, compilations, reports or extracts thereof, and all other materials based on or containing such Proprietary Information in its possession or in the possession of any of its Representatives; provided that Staples and its Representatives may, in lieu of delivering analyses or other materials prepared by them based on or containing such Proprietary Information, destroy such materials and promptly certify such destruction; provided further that in no event shall Staples or any of Staples’ Representatives be required to return or destroy any Proprietary Information that is automatically created or saved as a result of ordinary course preexisting computer or other archival backup procedures so long as neither Staples nor any of Staples’ Representatives use (except to the extent contemplated in the immediately preceding paragraph) any such archived Proprietary Information for any purpose after the date on which Staples advises Essendant that it does not wish to proceed with the Transaction or the date on which Essendant requests the return of all Proprietary Information. Whether written or oral, returned or destroyed, all Proprietary Information shall continue to be held confidential pursuant to the terms of this letter agreement.

Staples acknowledges that neither Essendant nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any Proprietary Information. Staples also agrees that it is not entitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made to it in a definitive agreement relating to the Transaction, if any, subject to the terms and conditions of such agreement. Nothing contained in this letter agreement nor the conveying of Proprietary Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.

4. Confidential and Proprietary Information.This offer of employment is contingent upon your execution of the Proprietary Information and Inventions Agreement, attached hereto as Exhibit A.

I further acknowledge that Proprietary Information is solely the property of the Company and I agree that at no time either during the period of my employment nor thereafter will I challenge or engage in any other acts which question or impugn the validity or ownership of the Company’s rights in any Proprietary Information.I further acknowledge that any and all improvements or modifications to Proprietary Information that I generate, make, conceive, develop or reduce to practice or to specific form, whether alone or in conjunction with others, either during or after the period of my employment with the Company shall constitute Proprietary Information.

When I leave the employ of the Company, I will deliver to the Company any and all copies and originals of drawings, notes, memoranda, lab notebooks, specifications, correspondence (including email and quickmail messages), devices, equipment, formulas, documents, molecules, cells, organisms, plasmids, cosmids, bacteriophages, expression vectors, cell lines, peptides, proteins, DNA, RNA, and their constructs and other biological materials, and the progeny and clones of the foregoing biological materials and sequence, amino acid, genomic, and structural information relating thereto; crystals, optically active materials, ceramics, metals, metal oxides and organic and inorganic chemical and other physical materials and derivatives and salt forms of the foregoing, and any other material containing or disclosing any Inventions, Employment Inventions or Proprietary Information.I further agree that any property situated on the Company’s premises and owned by the Company, including disks and other storage media, quickmail, email, voicemail, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice.Prior to leaving, I will reasonably cooperate with the Company in completing and signing the Company’s documentation for separating staff members.

In addition to patent protection, we utilize trade secrets to protect proprietary information related to our research tools, know how, continuing technological innovation relating to our platform technologies and to help maintain our competitive advantage. We own two registered trademarks for “Principia Biopharma” and “Tailored Covalency.” We enter into confidentiality agreements with our employees, contractors, scientific advisors, and consultants to protect our proprietary information. Trade secrets and know-how can be difficult to protect, and we anticipate that with respect to our platform technologies, these trade secrets and know-how may over time be disseminated within the industry through independent development.

1.Proprietary Information. The term “Proprietary Information” shall mean trade secrets, research, inventions, confidential knowledge, data or any other information or materials that the Company treats or considers as proprietary, whether or not such Proprietary Information is patentable or copyrightable, however it is embodied and irrespective of whether it is labeled as “proprietary” or “confidential”. By way of illustration but not limitation, “Proprietary Information” includes (a)inventions, trade secrets, know-how, ideas, confidential knowledge, chemical structures, compositions, pharmaceutical formulations, methods of administration and synthesis, improvements, discoveries, developments, processes, designs, techniques, formulas, formulations, source and object codes, data, programs, other works of authorship; organisms, plasmids, cosmids, bacteriophages, expression vectors, cells, cell lines, tissues, materials, substrates, media, delivery methods or transfection methods, assays, compounds, peptides, proteins, DNA, RNA, and their constructs, and sequence, genomic, and structural information relating thereto; crystals, optically active materials, ceramics, metals, metal oxides, and organic and inorganic chemical, biological and other material and their progeny, clones and derivatives and salt forms (hereinafter the Proprietary Information found at paragraph 1(a) shall collectively be referred to as “Inventions”); and (b)information regarding the Company’s plans for research, development, manufacturing, engineering, new products, marketing and selling, the Company’s business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and information regarding the skills and compensation of other employees of the Company.

In connection with a possible strategic transaction (“Proposed Transaction”) between Brocade Communications Systems, Inc. (“Brocade”) and Ruckus Wireless, Inc. (“Company”), and in order to allow Brocade and Company to evaluate the Proposed Transaction, each of Brocade and Company has and may continue to deliver to the other party hereto certain information about its properties, employees, finances, projections, prospects, strategies, products, services, businesses and operations (such party when disclosing such information being the “Disclosing Party” and when receiving such information being the “Receiving Party”). All information about the Disclosing Party furnished by the Disclosing Party or its Representatives (as defined below) to the Receiving Party or its Representatives, whether communicated in writing, other tangible form, in electronic form, orally, or by another medium, in furtherance of the Proposed Transaction, is referred to in this letter agreement as “Proprietary Information.” Proprietary Information shall not include, however, information which (i)is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement; (ii)was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii)becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party or its Representatives who is not known to the Receiving Party to be otherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not known to the Receiving Party to be under an obligation to the Disclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv)is independently developed by the Receiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (a)“Representative” shall mean, as to any person, its directors, officers, employees, agents, financing sources and advisors (including, without limitation, financial advisors, attorneys and accountants); and (b)“person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.

The terms of confidentiality under this letter agreement shall not be construed to limit either party’s right to independently develop or acquire products without use of the other party’s Proprietary Information. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Proprietary Information. Accordingly, nothing in this letter agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Proprietary Information provided that the Receiving Party does not violate any of its obligations under this letter agreement in connection with such development. Further, either party shall be free to use for any purpose any residuals resulting from access to or work with such Proprietary Information, provided that such party shall maintain the confidentiality of the Proprietary Information as provided herein, and provided that this right to residuals does not represent a license under any patents, copyrights or other intellectual property rights of the Disclosing Party. The term “residuals” means information in non-tangible form which may be retained in the unaided memories of persons who have had access to the Proprietary Information, including ideas, concepts, know-how or techniques contained therein, provided such persons have not intentionally memorized the information for the purpose of retaining and subsequently using or disclosing it. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals.

Subject to the terms and conditions of a definitive agreement regarding the Proposed Transaction and without prejudice thereto, each party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the Proprietary Information. The Receiving Party shall not be entitled to rely on the completeness of any Proprietary Information, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as may be made to it in any definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of such agreement.

(a)All information that is furnished directly or indirectly by the Disclosing Party or any of its Representatives (asdefined below), whether or not marked as confidential and whether furnished before or after the date hereof, whether in oral, written or electronic form, together with any notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or other materials prepared by the Receiving Party or any of its Representatives that contain, references to or are based upon, in whole or in part, any information so furnished to the Receiving Party or any of its Representatives pursuant hereto (such notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or other materials are referred to herein as "Derivative Materials"), is referred to herein as "Proprietary Information". Proprietary Information does not include, however, information that (i)was or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its Representatives, which source the Receiving Party does not know, after reasonable inquiry, to be in violation of any legal duty or obligation owed to the Disclosing Party or any of its Representatives with respect to such information, (ii)was or becomes generally available to the public (other than as a result of a breach by the Receiving Party or its Representatives of this Agreement or a violation by the Receiving Party or its Representatives of any other non-use or confidentiality obligation), (iii)was previously in the possession of the Receiving Party, or (iv)was independently developed by the Receiving Party or any of its Representatives without reference to the Proprietary Information. The term "Representative" means, as to any person, such person's affiliates, officers, directors, general partners, members, employees, consultants, investment bankers, financial advisors, accountants, legal counsel, consultants and potential lenders. The term "affiliate" has the meaning set forth in Rule12b-2 of the regulations promulgated under Securities Exchange Act of 1934, as amended (the"Exchange Act").

2.Legally Required Disclosure; Return or Destruction of Proprietary Information. In the event the Receiving Party (orany of its Representatives) shall be Legally Required to disclose any Proprietary Information or Transaction Information, the Receiving Party shall, in advance of such disclosure, to the extent legally permissible, provide the Disclosing Party with notice of such requirement and a description of the Proprietary Information and Transaction Information that the Receiving Party or its Representative intends to disclose and to reasonably cooperate with the Disclosing Party to the extent it may seek to limit such disclosure, including, if requested, taking all reasonable steps, at the Disclosing Party's expense, to resist or avoid any such legal, judicial, regulatory or administrative process or to obtain a protective order in respect thereof. Upon either party's request, each party hereto shall (andshall cause its Representatives, and any other person, to whom it has disclosed any Proprietary Information or Transaction Information) promptly either (atthe Receiving Party's option) return to the other party hereto or destroy (andcertify in writing to the other party by an authorized officer supervising such destruction) all copies or other reproductions of Proprietary Information of the other party, other than any Derivative Materials, in its possession or the possession of any of its Representatives, and shall not retain any copies or other reproductions, in whole or in part, of such materials. The Receiving Party shall destroy all Derivative Materials, and such destruction will be certified in writing to the Disclosing Party by an authorized officer supervising such destruction. Notwithstanding the foregoing, the Receiving Party may retain data or electronic records containing Proprietary Information or Derivative Materials for the purposes of complying with its record retention policies or as required by applicable law so long as such data or records are not accessible in the ordinary course of business. Notwithstanding the return or destruction of Proprietary Information required by this Paragraph2, for the duration of the term of this Agreement, the Receiving Party and its Representatives shall continue to be bound by all duties and obligations hereunder in accordance with the termshereof.

but shall be in addition to all other remedies available at law or equity. The parties hereto agree that unless and until a definitive agreement is executed and delivered with respect to the Possible Transaction, neither party intends to be, nor shall either be, under any legal obligation with respect to the Possible Transaction or otherwise, by virtue of any written or oral expressions by themselves or their respective Representatives with respect to the Possible Transaction, including any obligation to commence or continue discussions or negotiations, except for the matters specifically agreed to in this Agreement. Neither party hereto makes any representation or warranty, express or implied, on which the other party may rely as to the accuracy or completeness of the Proprietary Information and only those representations and warranties made in writing in a definitive agreement for a Possible Transaction, if any, shall have any legal effect. The parties hereto also agree that, other than as may be set forth in a definitive agreement for a Possible Transaction, neither party hereto shall have any liability whatsoever to the other party, including in contract, tort or under federal or state securities laws, arising out of, relating to, or resulting from, any errors or omissions in the Proprietary Information. This Agreement may be executed in one or more counterparts which may be delivered by way of PDF or similar electronic facsimile, each of which shall be deemed an original, and all of which shall constitute one and the sameAgreement.

For purposes of this Agreement, Proprietary Information shall mean all Company intellectual property, customer relationships, personnel, or sales, marketing, and financial operations and methods, trade secrets, formulas, devices, secret inventions, processes, and other compilations of information, records, and specifications, confidential or trade secret information (including but not limited to “trade secrets” as defined in Section 3426.1 of the California Civil Code) (collectively “Proprietary Information”). The Company and any of its affiliates shall have the exclusive, worldwide rights and ownership to Employee’s contribution to all Proprietary Information, as well as the exclusive worldwide rights to reproduce, adapt, publish, market, distribute, sell, license and display Employee’s contribution to any and all Proprietary Information. These rights may be exercised by the Company through the Company or any of its affiliates. Nothing contained in this Agreement shall be construed as an assignment or grant to Employee of any right, title, or interest in or to any Proprietary Information, it being understood that all rights relating thereto owned by the Company are reserved by the Company. Employee is deemed to have simultaneously assigned, transferred, and conveyed to the Company any trade rights, trademark, service mark, or copyright, equities, good will, titles, or other rights in and to Employee’s contribution to Proprietary Information, including which may have been obtained or created by Employee’s contribution to any and all Proprietary Information during the employment relationship. Any such assignment, transfer or conveyance shall be made without other considerations.

1. Subject to the limitations set forth in Section2, any information, which is marked or otherwise identified as confidential or could reasonably be considered to be confidential or proprietary, of a party (the “Disclosing Party”) disclosed or made available to the other party by the Disclosing Party or its Representative (the “Receiving Party”), whether in oral, written, graphic, electronic, or other form, and which is disclosed in connection with the Potential Transaction shall be “Proprietary Information.” In particular, Proprietary Information of a party shall include, without limitation, trade secrets, know-how, inventions, ideas, tangible and intangible information, including, where applicable, but not limited to, antibodies and other biological materials, cell lines, samples of assay components, media and/or cell lines and procedures and formulations for producing any such assay components, media and/or cell lines, formulations, compounds, products, processes, designs, formulas, methods, techniques, programs, software models, algorithms, developmental or experimental work, test data and results (including, without limitation, pharmacological, toxicological and clinical test data and results), compilations of data, other works of authorship, improvements, discoveries, information regarding plans for research and development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers, customers, licensees and strategic partners, the existence and terms of any business discussions, negotiations or agreements to which such party is a party and information regarding the skills and compensation of other employees or consultants of such party.

6.Subject to the terms and conditions of a definitive agreement regarding the Proposed Transaction and without prejudice thereto, each party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the Proprietary Information. Without limiting any party’s liability for fraud, (i)the Receiving Party shall be entitled to rely solely on such representations and warranties regarding the accuracy and completeness of the Proprietary Information as may be made to it in any definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of such agreement and (ii)neither the Disclosing Party nor its Representatives shall have any liability to the Receiving Party or any of its Representatives or any other person, including, without limitation, in contract, tort or under federal or state securities laws, relating to or resulting from the use of the Proprietary Information by the Receiving Party or any errors therein or omissions therefrom. The Receiving Party acknowledges and agrees that its determination to engage in a Proposed Transaction with the Disclosing Party, if any, will be based solely on the terms of such a definitive agreement and on the Receiving Party’s own investigation, analysis, and assessment of the Disclosing Party and its affiliates.

Proprietary Information. The term “Representative” means, as to any person, such person’s affiliates, officers, directors, general partners, members, employees, consultants, investment bankers, financial advisors, accountants, legal counsel, consultants and potential lenders. The term “affiliate” has the meaning set forth in Rule12b-2 of the regulations promulgated under Securities Exchange Act of 1934, as amended (the “Exchange Act”).

have any legal effect. The parties hereto also agree that, other than as may be set forth in a definitive agreement for a Possible Transaction, neither party hereto shall have any liability whatsoever to the other party, including in contract, tort or under federal or state securities laws, arising out of, relating to, or resulting from, any errors or omissions in the Proprietary Information. This Agreement may be executed in one or more counterparts which may be delivered by way of PDF or similar electronic facsimile, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.

b. The Employee acknowledges that the performance of his or her duties will require the receipt and use of Proprietary Information. The Company will provide the Employee with Proprietary Information including, but not limited to, technology, process information, knowhow, test data, development plans, business strategies, information about the methods of operation, compensation plans, and future business plans of one or more of the Related Companies; and information concerning one or more of the Related Companies’ business relationships with their suppliers, customers, potential customers, and individual employees of those suppliers, customers and potential If the Employee is already employed by the Company, the Company will continue to provide the Employee with one or more of the foregoing and also will provide the Employee with one or more of the foregoing of a different nature than that already provided or promised.

All information, whether in oral, written, graphic, electronic or other form, disclosed by the Company to the SAB Member shall be deemed to be “Proprietary Information.” In particular, Proprietary Information includes, without limitation, any trade secrets, confidential information, ideas, inventions or research and development information; matters of a technical nature, including technology; notes, products, know-how, engineering or other data (including test data and data files); specifications, processes, techniques, formulae or work-in-process; manufacturing, planning or marketing procedures, clinical data and regulatory strategies or information; accounting, financial or pricing procedures or information, budgets or projections, or personnel or salary structure/compensation information; information regarding suppliers, clients, customers, employees, contractors, investors or investigators of the Company, information which has been designated in writing as confidential by the Company; programs, procedures (including operating procedures), processes, methods, guidelines, policies, proposals or contracts; computer software, data bases or programming; and any other information which, if divulged to a third party, could have an adverse impact on the Company, or on any third party to which it owes a confidentiality obligation. In addition, “Proprietary Information” includes any of the foregoing relating to the past, present or future operations, organization, projects, finances, business interests, methodology or affairs of any third party to which the Company owes a duty of confidentiality including, without limitation, the mere fact that the Company is or may be working with or for any client.

Furthermore, we cannot be certain that the intellectual property rights we do obtain and rely on will not be challenged or invalidated in the future. In the event of such a challenge, we could incur significant costs to defend our rights, even if we are ultimately successful. We also may not be able to prevent current and former employees, contractors and other parties from breaching confidentiality agreements and misappropriating trade secrets or other proprietary information. It is possible that third parties may copy or otherwise obtain and use our information and proprietary technology without authorization or otherwise infringe on our intellectual property rights. Infringement of our intellectual property rights may adversely affect our results of operations and make it more difficult for us to establish a strong market position in countries which may not afford adequate protection of intellectual property rights. Furthermore, others may develop technologies that are similar or superior to our technologies, duplicate our technologies or design around our patents, and steps taken by us to protect our technologies may not prevent infringement or misappropriation of such technologies. Additionally, we have licensed, and may license in the future, patents, trademarks, copyrights, trade secrets and other intellectual property rights to third parties. While we attempt to ensure that our intellectual property rights are protected when entering into business relationships, third parties may take actions that could materially and adversely affect our rights or the value of our intellectual property rights or reputation. If necessary, we also rely on litigation to enforce our intellectual property rights and contractual rights, and, if not successful, we may not be able to protect the value of our intellectual property rights. Any litigation could be protracted and costly and could have a material adverse effect on our business and results of operations regardless of its outcome.

2. Legitimate Interest. Due to the nature of the Company’s business, certain the Company employees, including Employee, have access to Proprietary Information. Likewise, via their employment, certain the Company employees, including Employee, receive specialized training and/or shall be introduced to, given the opportunity to develop personal contacts with, and actually develop an advantageous familiarity as to the Company’s Customers and Prospective Customers. If the confidential or “trade secret” information, specialized training, or contacts and familiarity were made available to the Company competitors or other individuals outside the Company, or otherwise used against the Company interests, it would undoubtedly result in a loss of business or competitive position for the Company and/or harm the Company’s goodwill and investment in developing and maintaining its business relationships. Employee also agrees he/she holds a position uniquely essential to the management, organization, and/or service of the Company and the Company’s business is inherently national in character.

(i) Inevitable Use of Proprietary Information. Employee acknowledges and agrees that, after Employee’s separation of employment, Employee will possess the Company’s Proprietary Information which Employee would inevitably use if Employee were to engage in the conduct prohibited by Section5 (including each of its sub-sections), that such use would be unfair and extremely detrimental to the Company and, in view of the benefits provided to Employee in this Agreement, that such conduct on his or her part would be inequitable. Accordingly, Employee separately and severally agrees for the benefit of the Company to be bound by each of the covenants described above.

Table of Contents We enter into confidentiality and invention assignment agreements with our employees and consultants and enter into confidentiality agreements with the parties with whom we have strategic relationships and business alliances. No assurance can be given that these agreements will be effective in controlling access to, and use and distribution of, our platform and proprietary information. Further, these agreements do not prevent our competitors from independently developing technologies that are substantially equivalent or superior to our platform or solutions.

All of such information has commercial value in the business in which Company is engaged and is hereinafter called “Proprietary Information.” By way of illustration, but not limitation. Proprietary Information includes any and all Company Inventions (as defined below), technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of Company, and includes, without limitation, its respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, / sales and merchandising, marketing plans and information, and information regarding other employees.

Confidentiality agreements with employees and others may not adequately prevent disclosure of trade secrets and other proprietary information. Disclosure of our trade secrets or proprietary information could compromise any competitive advantage that we have.

B. For purposes of this Agreement, “proprietary information” shall mean any information relating to the business of NanoViricides, or any entity in which NanoViricides has a controlling interest, that has not previously been publicly released by duly authorized representatives of NanoViricides and shall include (but shall not be limited to) information encompassed in all research plans, formulas, proposals, business plans, financial information, costs, pricing information, or investor information and records, and all invention methods, concepts, or ideas used in or reasonably related to the business of NanoViricides or any entity in which NanoViricides or its officers and shareholders have a controlling interest. Vyas agrees to regard and preserve as confidential all proprietary information, whether she has such information in her memory or in writing or other physical form. Vyas will not, without written authority from NanoViricides to do so, directly or indirectly, use for her benefit or purposes, nor disclose to others, either during the term of her employment hereunder or thereafter, except as required by the conditions of her employment hereunder, any proprietary information. Vyas agrees not to remove from the premises of NanoViricides or any subsidiary or affiliate of NanoViricides, except as an employee of NanoViricides in pursuit of the business of NanoViricides or any of its subsidiaries, affiliates or any entity in which NanoViricides has a controlling interest, or except as specifically permitted in writing by NanoViricides any document or object containing or reflecting any proprietary information. Vyas recognizes that all such documents and objects, whether developed by him or by someone else, are the exclusive property of NanoViricides.

In addition to our reliance on patent protection for our inventions, product candidates and research programs, we also rely on trade secret protection for our confidential and proprietary information. For example, certain elements of our proprietary platform may be based on unpatented trade secrets that are not publicly disclosed. Although we take steps to protect our proprietary information and trade secrets, including through contractual means with our employees and consultants, third parties may independently develop substantially equivalent proprietary information and techniques or otherwise gain access to our trade secrets or disclose our technology. Thus, we may not be able to meaningfully protect our trade secrets. It is our policy to require our employees, consultants, outside scientific collaborators, sponsored researchers and other advisors to execute confidentiality agreements upon the commencement of employment or consulting relationships with us. These agreements provide that all confidential information concerning our business or financial affairs developed or made known to the individual or entity during the course of the party's relationship with us is to be kept confidential and not disclosed to third parties except in specific circumstances. In the case of employees, the agreements provide that all inventions conceived by the individual, and which are related to our current or planned business or research and development or made during normal working hours, on our premises or using our equipment or proprietary information, are our exclusive property. In addition, we take other appropriate precautions, such as physical and technological security measures, to guard against misappropriation of our proprietary technology by third parties. We have also adopted policies and conduct training that provides guidance on our expectations, and our advice for best practices, in protecting our trade secrets.

1. Proprietary Information. I agree that all information, whether or not in writing, whether or not disclosed before or after I was first employed by the Company, concerning the Company’s business, technology, business relationships or financial affairs that the Company has not released to the general public (collectively, “Proprietary Information”), and all tangible embodiments thereof, are and will be the exclusive property of the Company. By way of illustration, Proprietary Information may include information or material that has not been made generally available to the public, such as: (a)corporate information, including plans, strategies, methods, policies, resolutions, notes, email correspondence, negotiations or litigation; (b)marketing information, including strategies, methods, customer identities or other information about customers, prospect identities or other information about prospects, or market analyses or projections: (c)financial information, including cost and performance data, debt arrangements, equity structure, investors and holdings, purchasing and sales data and price lists; and (d)operational and technological information, including plans, specifications, manuals, forms, templates, software, designs, methods, procedures, formulas, discoveries, inventions, improvements, biological or chemical materials, concepts and ideas; and (e)personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data, compensation structure, performance evaluations and termination arrangements or documents. Proprietary Information includes, without limitation, (1)information received in confidence by the Company from its customers or suppliers or other third parties, and (2)all biological or chemical materials and other tangible embodiments of the Proprietary Information.

2. Recognition of Company’s Rights. I will not, at any time, without the Company’s prior written permission, either during or after my employment, disclose or transfer any Proprietary Information to anyone outside of the Company, or use or permit to be used any Proprietary Information for any purpose other than the performance of my duties as an employee of the Company. I will cooperate with the Company and use my best efforts to prevent the unauthorized disclosure of all Proprietary Information. I will deliver to the Company all copies and other tangible embodiments of Proprietary Information in my possession or control upon the earlier of a request by the Company or termination of my employment.

Many of our employees were previously employed at universities or other biotechnology or pharmaceutical companies, including our competitors or potential competitors. Although we try to ensure that our employees do not use the intellectual property and other proprietary information or know-how of others in their work for us, we may be subject to claims that we or these employees have used or disclosed such intellectual property or other proprietary information. Litigation may be necessary to defend against these claims.

1. Proprietary Information. I agree that all information, whether or not in writing, concerning the Company’s or its Affiliates’ business, technology, business relationships or financial affairs which the Company or its Affiliates have not released to the general public (other than due to any breach of this agreement) (collectively, “Proprietary Information”) is and will be the exclusive property of the Company or its Affiliates, as applicable. By way of illustration, Proprietary Information may include information or material which has not been made generally available to the public, such as: (a)corporate information, including plans, strategies, methods, policies, resolutions, negotiations or litigation; (b)marketing information, including strategies, methods, customer identities or other information about customers, prospect identities or other information about prospects, or market analyses or projections; (c)financial information, including cost and performance data, debt arrangements, equity structure, investors and holdings, purchasing and sales data and price lists; (d)operational and technological information, including plans, specifications, manuals, forms, templates, software, designs, procedures, formulas, discoveries, inventions, improvements, concepts and ideas; and (e)personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data, compensation structure, performance evaluations and termination arrangements or documents. Proprietary Information also includes information received in confidence by the Company or its Affiliates from customers, suppliers or other third parties.

2. Recognition of Company’s Rights. I will not, at any time, without the Company’s prior written permission, either during or after my Service to the Company, disclose any Proprietary Information to anyone outside of the Company, or use or permit to be used any Proprietary Information for any purpose other than the performance of my duties in Service of the Company, and will cooperate with the Company and use my best efforts to prevent the unauthorized disclosure of all Proprietary Information. This obligation of confidentiality will terminate five years after termination of my Service to the Company (and will survive indefinitely for Proprietary Information that is a trade secret). I will deliver to the Company all copies of Proprietary Information in my possession or control reasonably promptly upon the earlier of a request by the Company or termination of my Service of the Company.

13. Publications and Public Statements. I will obtain the Company’s written approval before publishing or submitting for publication any material that relates to my work at the Company or any of its Affiliates and/or incorporates any Proprietary Information. To ensure that the Company and its Affiliates deliver a consistent message about their respective products, services and operations to the public, and further in recognition that even positive statements may have a detrimental effect on the Company or its Affiliates in certain securities transactions and other contexts, any statement about the Company or its Affiliates which I create, publish or post during the term of Service for the Company and for six (6)months thereafter, on any media accessible by the public, including but not limited to social media and networking services and sites, electronic bulletin boards and Internet-based chat rooms, must first be reviewed and approved by an officer of the Company before it is released in the public domain. After termination of my Services to the Company, neither the Company nor I will make any disparaging or critical remarks about the other, whether orally, in writing, by social or other electronic media or otherwise, except as may be required by law or an order of a court or governmental entity having appropriate jurisdiction.

8.15. Proprietary Information. Each Party is prohibited from, and shall prohibit its Affiliates and Contracted Providers from, disclosing to a third party the substance of this Agreement, or any information of a confidential nature acquired from the other Party (or Affiliate or Contracted Provider thereof) during the course of this Agreement, except to agents of such Party as necessary for such Party’s performance under this Agreement, or as required by a Payor Contract or applicable Regulatory Requirements. Provider acknowledges and agrees that all information relating to Company’s programs, policies, protocols and procedures is proprietary information, and except for such disclosures as are required by Regulatory Requirements, Provider shall not disclose such information to any person or entity without Health Plan’s express written consent.

We employ individuals who were previously employed at other biotechnology or pharmaceutical companies. We may be subject to claims that we or our employees, consultants or independent contractors have inadvertently or otherwise improperly used or disclosed confidential information of these third parties or our employees’ former employers. Further, we may be subject to ownership disputes in the future arising, for example, from conflicting obligations of consultants or others who are involved in developing our product candidates. We may also be subject to claims that former employees, consultants, independent contractors, collaborators or other third parties have an ownership interest in our patents or other intellectual property. Litigation may be necessary to defend against these and other claims challenging our right to and use of confidential and proprietary information. If we fail in defending any such claims, in addition to paying monetary damages, we may lose our rights therein. Such an outcome could have a negative impact on our business. Even if we are successful in defending against these claims, litigation could result in substantial cost and be a distraction to our management and employees.

4.5. Proprietary Information. Seller is the sole owner, or is exclusively licensed to use, free and clear of any Liens or Third Party Rights, all Proprietary Information used in or necessary for the conduct of its business as so far conducted. There are no claims or demands pending by any other person pertaining to any of such Proprietary Information nor is there a claim or demand threatened, and no proceedings have been instituted or threatened which challenge the rights of Seller with respect to such Proprietary Information and Seller there is no basis for such claim.

the circumstances in which they were made or delivered. There is no material fact or information individually or in the aggregate relating to the Proprietary Information, existing as of the date hereof, that has not been expressly disclosed to Purchaser by Seller and which: (i) is reasonably necessary to enable Purchaser to decide to enter into the transactions contemplated in this Agreement; or (ii) have or could reasonably be expected to have a material adverse effect on the Proprietary Information. The Purchaser have the right to rely fully upon the representations, warranties, covenants and agreements of Seller contained in this Agreement (including, inter alia, any Schedule or Exhibit hereto) or in any certificate made or delivered in connection herewith.

6. Return or Destruction of Proprietary Information. Upon the Company’s request, subject to the provisions of Paragraph 1(c), you shall (and shall direct your Representatives to) promptly (and in any event within five days) either (at your or your Representative’s option) return to the Company or destroy (and certify such destruction to the Company in writing) all copies or other reproductions of Proprietary Information, other than any Derivative Materials, in your possession or the possession of any of your Representatives, and shall not retain any copies or other reproductions, in whole or in part, of such materials. You shall (and shall direct your Representatives to) destroy all Derivative Materials (including, without limitation, expunging all such Derivative Materials from any computer, word processor or other device containing such information), and such destruction will be certified in writing to the Company. Notwithstanding the foregoing, you and your Representatives may retain (a)data or electronic records containing Proprietary Information for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning or business continuity planning purposes, and (b)one copy each exclusively for regulatory or records retention policy compliance and for dispute resolution; provided, however, that any such Proprietary Information may not be accessed or used for any other purpose. Notwithstanding the return or destruction of Proprietary Information required by this Paragraph 6, you and your Representatives shall continue to be bound by all duties and obligations hereunder in accordance with the terms hereof.

however, that the foregoing shall not preclude (1)the hiring of Other Employees who apply for employment with you on their own initiative without direct or indirect inducement or encouragement by you, (2)the solicitation (or employment as a result of the solicitation) of Other Employees whose employment has been terminated, or (3)the solicitation (or employment as a result of the solicitation) of Other Employees through (i)public advertisements or general solicitations that are not specifically targeted at such person(s)or (ii)recruiting or search firms retained by you, or internal search personnel who did not have access to Proprietary Information, using a database of candidates without targeting the Company or specific individuals, without direction or knowledge on your behalf by any person who had access to Proprietary Information. You agree that you and your Representatives will not, without the prior written consent of the Company, engage in discussions with management of the Company (other than members of the Group) regarding the terms of their post-transaction employment or equity participation as part of, in connection with or after a Possible Transaction, unless and until a definitive agreement is executed and delivered with respect to the Possible Transaction.

9. Ownership of Proprietary Information. You agree that the Company is and shall remain the exclusive owner of the Proprietary Information (other than Derivative Materials to the extent created by you, other than Proprietary Information reflected therein) and all patent, copyright, trade secret, trademark, domain name and other intellectual property rights therein. No license or conveyance of any such rights or any portions thereof to you or any of your Representatives is granted or implied under this Agreement.

Consultant agrees that all Inventions shall be the sole property of Vical and its assigns, and Vical and its assigns shall be the sole owner of all patents and other rights in connection therewith.Consultant hereby assigns to Vical any and all right title and interest in or to any and all Inventions conceived or made by Consultant, whether alone or with others, during the term of this Agreement which either (a) involve or are reasonably related to the business of Vical or to Vical’s actual or demonstrably anticipated research or development; or (b) incorporate or are based on, in whole or in part, any of the Proprietary Information.Consultant agrees to provide all assistance reasonably requested by Vical in the preservation of its interests in the Inventions, such as by executing documents, testifying, etc., such assistance to be provided at Vical’s expense but without any additional compensation.Consultant shall at the expense of Vical, assist Vical or its nominees to obtain patents for such Inventions in any countries throughout the world.Such Inventions shall be the property of Vical or its nominees, whether patented or not.Consultant shall and does, without charge to Vical, assign to Vical all right, title, and interest in and to such Inventions, including in patents and patent applications and reissues thereof.Such assignment shall include the right to sue for infringement.Consultant agrees to execute, acknowledge, and deliver any instruments confirming the complete ownership by Vical of such inventions.Such assignments shall include the right to sue for infringement.

3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1)copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.

Proprietary Information. The Company has and will develop, compile and own certain proprietary and confidential information that has significant value in its business (“Proprietary Information”). Proprietary Information includes all information which is not generally known to the Company’s competitors and the public, and which has or could have commercial value to the Company’s business. It includes not only information disclosed by the Company (or its customers, affiliates or vendors) to Employee during the course of his or her employment with the Company, but also information developed or learned by the Employee himself or herself during the course of his or her employment with the Company, such as Inventions, as defined below. Proprietary Information includes, but is not limited to, the following categories of information: information regarding the Company’s technology, computer programs, products, product specifications, techniques, inventions, discoveries, patents, improvements, research, test results, or know-how; information regarding the Company’s customers’ and vendors’ identities, characteristics, performance and agreements; information regarding the Company’s affiliates’, sub-affiliates’ and employees’ characteristics, performance and agreements; and information regarding the Company’s marketing, sales and business plans, strategies, forecasts, unpublished financial information, budgets, projections, and efforts. Employee acknowledges that such information is secret, valuable and owned by the Company, and that the Company has exercised substantial efforts to preserve the information’s secrecy.

1.Proprietary Information. Except as set forth below, I acknowledge at this time that I know nothing about the Proprietary Information or inventions of the Company, except information that has been disclosed to me by the Company or that which is generally available to the public (if none, so state): [specify relevant information].

9. Confidentiality. At all times, both during my employment and after its termination, and to the fullest extent permitted by law, I will keep and hold all Proprietary Information in strict confidence and trust. I will not use or disclose any Proprietary Information without the prior written consent of the Company in each instance, except as may be necessary to perform my duties as an employee of the Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the Company all documents and materials of any nature pertaining to my work with the Company, and I will not take with me or retain in any form any documents or materials or copies containing any Proprietary Information. Nothing in this Section9 or otherwise in this Agreement shall limit or restrict in any way my immunity from liability for disclosing the Company’s trade secrets as specifically permitted by 18 U.S. Code Section1833, the pertinent provisions of which are attached hereto as Exhibit C.

Our business position also depends in part on our ability to maintain and defend our existing patents and obtain, maintain, and defend additional patents and other intellectual property rights. We intend to seek additional patents, but our pending and future patent applications may not result in issued patents or be granted on a timely basis.In addition, issued patents may not contain claims sufficiently broad to protect us against third parties with similar technologies or products or provide us with any competitive advantage, including exclusivity in a particular product area. The scope of our patent claims also may vary between countries, as individual countries have distinctive patent laws. We may be subject to challenges by third parties regarding our intellectual property, including, among others, claims regarding validity, enforceability, scope and effective term. Patent prosecution, related proceedings, and litigation in the U.S. and in other countries may be expensive, time consuming and ultimately unsuccessful. In addition, patents issued by foreign countries may afford less protection than is available under U.S. patent law and may not adequately protect our proprietary information. Our competitors may independently develop proprietary technologies and processes that are the same as or substantially equivalent to ours or design around our patents. Our competition may also hold or obtain intellectual property rights that would threaten our ability to develop or commercialize our product offerings.The expiration of patents on which we rely for protection of key products could diminish our competitive advantage and adversely affect our business and our prospects.

The Employee recognizes that ABIOMED is engaged in a continuous program of research and development of such Proprietary Information.The Employee understands that as part of his/her employment he/she is expected to make contributions of value to ABIOMED, including the development of Proprietary Information.He acknowledges that his/her employment creates a relationship of confidence and trust between him/herself and ABIOMED with respect to information of a confidential nature which is discovered, made known to, or learned by him/her during the period of his/her employment, including Proprietary Information.

The Employee agrees that in the event of the termination of his/her employment for any reason, he/she will deliver to ABIOMED and shall not take with him/her, all documents and materials of any nature pertaining to any Proprietary Information.Employee shall execute a certificate in the form of Appendix B, at the time of termination of employment confirming compliance with the requirements of this Section and other provisions of this Agreement relating to the treatment of Proprietary Information.

Proprietary Information.All Trade Secrets and Related Materials, plus such financial data, statistical data, marketing data, data of all kinds, production and other costs, salaries, and any other information dealing with business operations or proposed business activities which Employee knows or has reason to know are intended by ABIOMED to remain confidential.

In addition to contractual measures, we try to protect the confidential nature of our proprietary information through other appropriate precautions, such as physical and technological security measures. However, trade secrets and know-how can be difficult to protect. These measures may not, for example, in the case of misappropriation of a trade secret by an employee or third party with authorized access, provide adequate protection for our proprietary information. Our security measures may not prevent an employee or consultant from misappropriating our trade secrets and providing them to a competitor, and any recourse we might take against this type of misconduct may not provide an adequate remedy to protect our interests fully.

In addition to patents, we rely on a combination of trade secrets, confidentiality, nondisclosure and other contractual provisions, and security measures to protect our confidential and proprietary information. These measures may not adequately protect our trade secrets or other proprietary information. If they do not adequately protect our rights, third parties could use our technology, and we could lose any competitive advantage we may have. In addition, others may independently develop similar proprietary information or techniques or otherwise gain access to our trade secrets, which could impair any competitive advantage we may have.

We also rely on trade secrets to protect our proprietary know-how and technologies, especially where we do not believe patent protection is appropriate or obtainable. However, trade secrets are difficult to protect. We rely in part on confidentiality agreements with our current and former employees, consultants, outside scientific collaborators, sponsored researchers, contract manufacturers, vendors and other advisors to protect our trade secrets and other proprietary information. These agreements may not effectively prevent disclosure of confidential information and may not provide an adequate remedy in the event of unauthorized disclosure of confidential information. In addition, we cannot guarantee that we have executed these agreements with each party that may have or have had access to our trade secrets. Any party with whom we or they have executed such an agreement may breach that agreement and disclose our proprietary information, including our trade secrets, and we may not be able to obtain adequate remedies for such breaches.

5. Upon termination of the Employee’s employment with the Company, the Employee will promptly deliver to the Company all documents and materials of any nature pertaining to Employee’s work with the Company, and will not retain any documents or materials or copies thereof containing any Proprietary Information. For the avoidance of doubt, Employee’s undertakings set forth in Sections 2-5 shall remain in full force and effect after termination of the Agreement (for any reason whatsoever) or any renewal thereof.

4.Confidentiality of Proprietary Information. Director recognizes the interest of the Company in maintaining the confidential nature of their proprietary information and agrees that he/she will not, directly or indirectly, disclose or use, except as required in the course of performing his/her duties to Company hereunder, any proprietary information of Company including, without limitation: records, files, data, software, source code, object code, processes, methods, techniques, formulae, products, inventions, product ideas, schematics, algorithms, flow charts, mechanisms, research, apparats, marketing, forecasts, customer lists, trade secrets, sales lists, agent lists, plans, specifications, price lists, vendor lists, manufacture lists, plans, salaries, duties, qualifications, performance levels and terms of compensation of employees, and/or cost or other financial data concerning any of the foregoing and other similar information which is proprietary in nature and not generally known to third parties unaffiliated with the Company. Proprietary information for these purposes shall also include personal information of any of the owners, officers, directors, employees and customers of Company that Director learns at any time during his/her relationship with the Company. Director agrees not to make copies of such proprietary information except as authorized by the Company.

12.This Agreement constitutes the entire agreement between the parties with respect to the disclosure(s) of Proprietary Information. Any amendments to this Agreement must be in writing and executed by each party.

confidential nature of our proprietary information using physical and technological security measures. Such measures may not, for example, in the case of misappropriation of a trade secret by an employee or third-party with authorized access, provide adequate protection for our proprietary information. Our security measures may not prevent an employee or consultant from misappropriating our trade secrets and providing them to a competitor, and recourse we take against such misconduct may not provide an adequate remedy to protect our interests fully. Enforcing a claim that a party illegally disclosed or misappropriated a trade secret can be difficult, expensive, and time-consuming, and the outcome is unpredictable. In addition, trade secrets may be independently developed by others in a manner that could prevent legal recourse by us. If any of our confidential or proprietary information, such as our trade secrets, were to be disclosed or misappropriated, or if any such information was independently developed by a competitor, our competitive position could be harmed.

Pursuant to Section2(a) of the Employment Agreements, Mr.McGarrity, Mr.Bahk, and Ms.Moinuddin agreed that beginning on the date they were hired and for the period of one (1)year following the end of their employment with the Company, they would not, directly or indirectly, compete in any manner or capacity (e.g. as an advisor, principal, agent, consultant, partner, member, joint venture, officer, director, employee, equity holder, lender, or otherwise) with the Company in the area of biodiagnostics using nanoparticles or any other business conducted or under research and/or development by the Company as to which they performed services or acquired proprietary information. Under the terms of the Merger Agreement, the Company, Luminex and the Purchaser agreed that the McGarrity Employment Agreement and the Bahk Employment Agreement would be amended at Closing to provide that, effective on and subject to the Closing, Section2(a) thereof shall be deleted (except that the definition of “Restricted Period” shall remain one (1)year for purposes of Section2(d) thereof).

(d) I understand that my obligations under this Section 1 of this Agreement shall survive any termination of my employment by Nanosphere and shall terminate with regard to any Proprietary Information only when (i)the Proprietary Information becomes generally available to the public on a non-confidential basis (other than by my breach of my obligations under this Agreement), including from a third party provided that the third party is not in breach of an obligation of confidentiality with respect to the Proprietary Information; (ii)the use or disclosure of the Proprietary Information is approved for release by written authorization of Nanosphere; or (iii)the Proprietary Information is required to be disclosed by proper order of a court of competent jurisdiction after adequate notice to permit Nanosphere to seek a protective order for the Proprietary Information. If this occurs I agree to approve and support Nanosphere’s request for such a protective order.

Recognition of Company’s Rights. I will not, at any time, without the Company’s prior written permission, either during or after my employment, disclose any Proprietary Information to anyone outside of the Company, or use or permit to be used any Proprietary Information for any purpose other than the performance of my duties as an employee of the Company. I will cooperate with the Company and use my best efforts to prevent the unauthorized disclosure of all Proprietary Information. I will deliver to the Company all copies of Proprietary Information in my possession or control upon the earlier of a request by the Company or termination of myemployment.