Datasets:

urialon

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converted_contract_nli

like 0

517_nda-4

517_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: Exhibit (d)(4) MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT This Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. (“nStor”), a Delaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a company incorporated in England (‘Xyratex’) (collectively the ‘Parties’) for the purpose of sharing technical, business and financial information to foster potential mutually beneficial business relationships. 1. Confidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business financial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly drawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes, marketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments. Confidential Information shall not include information, technical data or knowledge which: a. is already known to the Receiving Party; b. is or becomes publicly known through no wrongful act of the Receiving Party; c. is rightfully received from a third party without restrictions and without breach of this Agreement; d. is independently developed by the Receiving Party; e. is approved for release by written authorization of the disclosing party; or f. if orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify it in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any information received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify the information disclosed as being confidential or proprietary. 2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first receipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information (the “Receiving Party”) shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in this Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential information which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such as numbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as strict as required by this Agreement. 3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the Parties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked and or disclosed verbally or visually and shall not diminish the value of its confidentiality. 4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the disclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential Information. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is certified by the Receiving Party to the satisfaction of the disclosing party. 5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or otherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made, conceived or acquired prior to the date of this Agreement. 6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing technical, business and financial information to foster potential mutually beneficial business relationships. (a) Confidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required for accomplishment of the purposes stated herein; (b) Confidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a “need to know” in connection with the purposes stated herein; and (c) This Agreement shall not restrict the disclosure or use of information that: (i) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by the Receiving Party; (ii) was, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the use or disclosure; (iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by the Receiving Party; or (iv) is developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed herein. 7. Trading Limitations. The Parties’ will comply with any applicable United States securities laws. 8. Arbitration and Equitable Relief. (a) Arbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in accordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of discovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered on the arbitrator’s decision in any court having jurisdiction. (b) Equitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of the covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this Agreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of the Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties hereby consent to the issuance of such injunction and to the ordering of specific performance. 9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney’s fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled. 10. General Provisions. (a) Governing Law. This Agreement shall be governed by the laws of the United States of America, State of California. (b) Severability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in full force and effect. (c) Successor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties. (d) Headings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this Agreement. 11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an obligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole discretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or discontinue sales at any time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal business organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either party to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities arising out of the other party’s efforts in connection with this Agreement. 12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding all prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of Confidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein. nStor Corporation, Inc. Xyratex Technology Limited /s/ Steve Aleshire /s/ Matt Cornell Authorized Signature Authorized Signature Matt Cornell Steve Aleshire Print Name Print Name Executive VP − Storage Systems COO Title Title September 3, 2004 9/3/04 Date Date

Entailment

518_nda-11

518_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Not mentioned

518_nda-16

518_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Not mentioned

518_nda-15

518_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-10

518_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-2

518_nda-2_0

Q: Confidential Information shall only include technical information. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Contradiction

518_nda-1

518_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Contradiction

518_nda-19

518_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-12

518_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-20

518_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-3

518_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Not mentioned

518_nda-18

518_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Not mentioned

518_nda-7

518_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-17

518_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-8

518_nda-8_0

Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-13

518_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-5

518_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

518_nda-4

518_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: EXHIBIT 99(d)(2) MUTUAL NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a Delaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the following: 1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”). 2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be reasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or partner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. 3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse of Confidential Information that may come to its attention. 4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to those involved herein. 6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or services similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from access to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of the Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from memory. 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. However, the foregoing shall not be deemed to grant to either party a license under the other party’s copyrights or patents. 7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving Party shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment. 8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege. 9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy (provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential Information so archived or backed-up. 10. Each party 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 Confidential Information. 11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other party is aware of or has indicated approval of, such decision. 12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. 13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this Agreement. 14. The Receiving Party acknowledges that neither the Disclosing Party 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 regarding the Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information. 15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from obtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations. 16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. 17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. 18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s sole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and use of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a termination of this Agreement until the first anniversary of the Effective Date. 19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that for a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the party’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s): (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does not intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of the receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at least 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting securities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other party and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to beneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be approved. This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Accepted and Agreed to by Sybase, Inc. By: /s/ Daniel R. Carl Name: Daniel R. Carl Title: Vice President, General Counsel and Secretary Date: April 19, 2010 SAP AG By: /s/ Werner Brandt By: /s/ Michael Junge Name: Dr. Werner Brandt Name: Michael Junge Title: CFO Title: General Counsel Date: April 19, 2010 Date: April 20, 2010

Entailment

519_nda-11

519_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Not mentioned

519_nda-16

519_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Not mentioned

519_nda-15

519_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-10

519_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-2

519_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Contradiction

519_nda-1

519_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Not mentioned

519_nda-19

519_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-12

519_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-20

519_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-3

519_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-18

519_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-7

519_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-17

519_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Not mentioned

519_nda-8

519_nda-8_0

Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-13

519_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-5

519_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

519_nda-4

519_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: Exhibit (d)(3) MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of May 14, 2018 (the “Effective Date”), between ALTAIR ENGINEERING INC. (the “Partner”) and DATAWATCH CORPORATION (the “Datawatch” and, together with Partner, each a “Party” and collectively the “Parties”). In order to facilitate the consideration and negotiation of a possible transaction involving the Parties, the Parties may exchange certain non-public information regarding the Parties and their respective subsidiaries. This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters. The Parties, intending to be legally bound, acknowledge and agree as follows: 1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 3 below, neither a Recipient (as defined in Section 11 below) nor any of such Recipient’s Representatives (as defined in Section 12 below) will, at any time, directly or indirectly: (a) make use of any of the Disclosing Party’s Confidential Information (as defined in Section 11 below), except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Parties; or (b) disclose any of the Disclosing Party’s Confidential Information to any other Person (as defined in Section 12 below). A Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or omission on the part of any Representative of a Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or omission would constitute a breach or violation of this Agreement if taken or omitted by a Recipient). A Recipient will (at its own expense) take all reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Disclosing Party’s Confidential Information. 2. No Representations by Disclosing Party. Neither a Disclosing Party nor any of such Disclosing Party’s Representatives will be under any obligation to make any particular Confidential Information of such Disclosing Party available to a Recipient or any of such Recipient’s Representatives. Neither a Disclosing Party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of such Disclosing Party’s Confidential Information, and neither such Disclosing Party nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of such Disclosing Party’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect. 3. Permitted Disclosures. (a) Notwithstanding the limitations set forth in Section 1 above: (i) the Recipient may disclose Confidential Information of the Disclosing Party if and to the extent that the Disclosing Party consents in writing (including without limitation email from a senior executive of the Disclosing Party) to the Recipient’s disclosure thereof; (ii) the Recipient may disclose Confidential Information of the Disclosing Party to any Representative of the Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of helping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of this Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such Confidential Information; and (iii) subject to Section 3(c) below, the Recipient may disclose Confidential Information of the Disclosing Party to the extent required by applicable law or governmental regulation or by valid legal process. (b) [Reserved] (c) Notwithstanding the limitations set forth in Section 1 above, if the Recipient or any of the Recipient’s Representatives is required by law or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Disclosing Party’s Confidential Information to any Person, then the Recipient will promptly provide the Disclosing Party with written notice of the applicable law, regulation or process so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the Disclosing Party and the Disclosing Party’s Representatives in any attempt by the Disclosing Party to obtain any such protective order or other remedy. If the Disclosing Party elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential Information of the Disclosing Party, then the Recipient may disclose such Confidential Information to the extent legally required without liability hereunder;. 4. Return of Confidential Information. Upon the Disclosing Party’s written request (including without limitation email), the Recipient and the Recipient’s Representatives will promptly deliver to the Disclosing Party any of the Disclosing Party’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Disclosing Party any such Confidential Information, the Recipient may destroy such Confidential Information and deliver to the Disclosing Party a certificate confirming its destruction. Notwithstanding the delivery to the Disclosing Party (or the destruction by the Recipient) of Confidential Information of the Disclosing Party pursuant to this Section 4, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. Notwithstanding the foregoing, Recipient shall be permitted to retain a copy of Recipient Work Product (as that term is defined in Section 11(b) below) for archival and dispute resolution purposes, however, any such retained Recipient Work Product shall continue to be subject to the confidentiality and non-use obligations set forth herein for so long as such Recipient retains such Recipient Work Product. 5. Limitation on Soliciting Employees. During the nine (9) month period commencing on the Effective Date, neither Party nor any of such Party’s Representatives will directly or indirectly solicit for employment, hire or induce or encourage (in each case, other than by means of a general solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of said other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered Person” shall mean any Person who is an employee of a Party or any subsidiary or other affiliate of such Party as of the Effective Date or who becomes an employee of such Party or of any subsidiary or other affiliate of such Party before the termination of discussions regarding a possible transaction involving the Parties. 6. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), each Party (hereinafter a “Restricted Party”) agrees that it will not, in any manner, directly or indirectly: (a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the other Party (“Other Party”) or any securities of any subsidiary of the Other Party, (ii) any acquisition of any material assets of the Other Party or the Other Party’s subsidiaries outside the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Other Party or the Other Party’s subsidiaries, or involving any securities or material assets of the Other Party or the Other Party’s subsidiaries, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the Other Party; (b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Other Party; (c) act, alone or in concert with others, to seek to control the management, board of directors or policies of the Other Party; (d) take any action that would reasonably be likely to require the Other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence; or (e) enter into any arrangement or agreement with any other Person relating to any of the foregoing. Notwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by the Other Party and a third party (other than the Partner or any affiliate of the Restricted Party) to effect (i) a merger, recapitalization or other business combination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of the Other Party immediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of the Other Party (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an offer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) the Restricted Party requests an opportunity to meet with the board of directors of the Other Party, and (3) the Other Party does not grant such request within seven days following the date thereof or thereafter continue such discussions in good faith, then the restrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect (it being understood that any good faith rejection by the Other Party of any offer or proposal made by the Restricted Party as part of such discussions shall not cause the restrictions set forth in this Section 6 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in this Section 6 will not terminate or otherwise affect any of the other provisions of this Agreement. Notwithstanding anything to the contrary herein, nothing in this Agreement shall prohibit the Restricted Party from making private communications to the board of directors of the Other Party, so long as such communications would not be reasonably be expected to require public disclosure. 7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction involving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party. 8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended. 9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach. Accordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, (a) if a court of competent jurisdiction decides that there is a prevailing Party in such litigation, then the non-prevailing Party will pay to the prevailing Party the reasonable legal fees incurred by the prevailing Party in connection with such litigation (including any appeal relating thereto) or (b) if a court of competent jurisdiction (i) does not opine on whether there is a prevailing Party in such litigation and (ii) determines that either Party or any of its Representatives has breached this Agreement, such breaching Party will be liable for, and will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation (including any appeal relating thereto). 10. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum. 11. Confidential Information. For purposes of this Agreement, “Confidential Information” will be deemed to include only the following information disclosed by one Party (a “Disclosing Party”) to the other Party (a “Recipient”): (a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Disclosing Party, any predecessor entity or any subsidiary or other affiliate of the Disclosing Party (whether prepared by the Disclosing Party or by any other Person and whether or not in written form) that is or that has been made available to the Recipient or any Representative of the Recipient by or on behalf of the Disclosing Party or any Representative of the Disclosing Party, regardless of the manner in which it was made available; (b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this sentence (“Recipient Work Product”); (c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has been made available to the Recipient or any of its Representatives; and (d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the proposed terms, conditions or other facts with respect to any such transaction, including the status thereof. However, a Disclosing Party’s “Confidential Information” will not be deemed to include: (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement; (ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives as evidenced by the written records of Recipient, provided that the source of such information was not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; (iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other Person with respect to any of such information; or (iv) is independently developed by the Recipient without use of or reference to any of the Disclosing Party’s Confidential Information. 12. Miscellaneous; Termination. (a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary or other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. (b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority. (c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement. (d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (e) By making Confidential Information or other information available to a Recipient or a Recipient’s Representatives, a Disclosing Party is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right. (f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines. (g) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior agreement between the Parties regarding the subject matter hereof. (h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. (i) Except as otherwise set forth herein, this Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and covenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property, intellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this Agreement. [Remainder of page intentionally left blank] The Parties have caused this Agreement to be executed as of the Effective Date. DATAWATCH CORPORATION ALTAIR ENGINEERING INC. By: /s/ James L. Eliason By: /s/ James R Scapa Name: James L. Eliason Name: James R Scapa Title: Chief Financial Officer Title: Chief Executive Officer Date: May 15, 2018 Date: May 14, 2018

Entailment

520_nda-11

520_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Not mentioned

520_nda-16

520_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Not mentioned

520_nda-15

520_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-10

520_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-2

520_nda-2_0

Q: Confidential Information shall only include technical information. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Contradiction

520_nda-1

520_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Not mentioned

520_nda-19

520_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Not mentioned

520_nda-12

520_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-20

520_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Contradiction

520_nda-3

520_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-18

520_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Not mentioned

520_nda-7

520_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-17

520_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-8

520_nda-8_0

Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-13

520_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-5

520_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

520_nda-4

520_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: DISCLOSING PARTY NON-DISCLOSURE AGREEMENT This agreement is made as of February 15, 2007 between GUIDELINE, Inc., a New York Corporation headquartered at 625 Avenue of the Americas, 2nd Floor, NY, NY 10011 (“DISCLOSING PARTY”), and the Company whose name is set forth in the signature section below (“Company”). 1. In connection with the business opportunity currently being explored by DISCLOSING PARTY and COMPANY, COMPANY agrees that all information obtained by it, whether in tangible or intangible form, from or about DISCLOSING PARTY, including, without limitation, information relating to the business opportunity being explored, or information relating to DISCLOSING PARTY’S products, services, technology, marketing, business plans, finances, research, development, know-how or personnel shall be considered Confidential Information. For purposes of this Agreement, Confidential Information shall also include the fact that such discussions are taking place. 2. For a period of 18 months, COMPANY agrees not to disclose or disseminate the Confidential Information to any third party, except for those of its employees, lawyers, accountants, insurance agents and other professional representatives who have a need to know such Confidential Information for the purpose of COMPANY’S evaluation of the opportunity and who agree to abide by the terms of this Agreement. Except as necessary to evaluate the business opportunity, COMPANY shall not use, reproduce or draw upon the Confidentia1 information for any purpose or circulate it within its organization. 3. The confidentiality obligations of COMPANY with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information that: (i) is now or subsequently becomes generally known or available to the public, by publication, commercial use or otherwise, through no fault of COMPANY; (ii) was known by COMPANY at the time of disclosure; (iii) was obtained by COMPANY from a third party, free of any obligation of confidence; or (iv) was independently developed by COMPANY without the use of any of the Confidential Information. Confidential Information may be disclosed by COMPANY as required by governmental regulation or pursuant to a subpoena or order of a court, agency or governmental authority which is binding upon COMPANY, provided that COMPANY shall provide prior written notice of such disclosure to DISCLOSING PARTY. 4. COMPANY shall provide notice to DISCLOSING PARTY of any demand made upon it under lawful process to disclose or provide the Confidential Information. COMPANY agrees to cooperate with DISCLOSING PARTY if DISCLOSING PARTY elects to seek reasonable protective arrangements or oppose such disclosure. 5 COMPANY recognizes that any breach of this Agreement by it would cause irreparable harm to DISCLOSING PARTY which would not be able to be quantified, and that any action for damages would not provide an adequate remedy for such breach. Therefore, in addition to any other remedies available to it, DISCLOSING PARTY would be entitled to judicial enforcement of this Agreement by injunction. 6. All Confidential Information shall remain the property of DISCLOSING PARTY. This Agreement does not grant any rights to COMPANY with respect to the Confidential Information. Upon written notice from DISCLOSING PARTY at any time, COMPANY shall return to DISCLOSING PARTY or destroy all Confidential Information and any copies or derivative works thereof. 7. Nothing contained herein shall obligate either party to proceed with any transaction and each party reserves the right, in its sole discretion, to terminate discussions relating to the business opportunity at any time. 8. This Agreement contains the entire agreement between the parties with respect to Confidential Information and no modification or waiver of the terms of this Agreement shall be binding unless it is in writing signed by an authorized representative of each party. 9. All Confidential Information is provided “As is” without any warranties, express, implied or otherwise, regarding its accuracy and completeness. Any representations regarding the Confidential Information, if any, will be contained in the documentation consummating the business opportunity, if any. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The parties hereto have executed this Agreement as of the date first written above. GUIDELINE, Inc. infoUSA Inc. Company Name 625 AVENUE OF THE AMERICAS Company Address 1 NEW YORK, NY 10011 Company Address 2 Signed: /s/ VINOD GUPTA Name: Vinod Gupta Title: Chief Executive Officer

Entailment

522_nda-11

522_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Not mentioned

522_nda-16

522_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Not mentioned

522_nda-15

522_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-10

522_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-2

522_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Contradiction

522_nda-1

522_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Contradiction

522_nda-19

522_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Not mentioned

522_nda-12

522_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-20

522_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Contradiction

522_nda-3

522_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-18

522_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-7

522_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-17

522_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Not mentioned

522_nda-8

522_nda-8_0

Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-13

522_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-5

522_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

522_nda-4

522_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: Exhibit (d)(2) NON DISCLOSURE AND CONFIDENTIALITY AGREEMENT This Confidential Non Disclosure and Confidentiality Agreement (“Agreement “) is dated as of March 1, 2017 between Versar, Inc., a company incorporated under the laws of the State of Delaware, having its principal place of business at 6850 Versar Center, Springfield, VA, 22151 and Kingswood Capital Management, LLC with its principal place of business at 11777 San Vicente Blvd., Suite 650, Los Angeles, CA 90049 (hereinafter known collectively as “the Parties” or individually as “Party”). WHEREAS, the Parties possess information of an intellectual, business , technical, scientific or industrial nature which is not within the public domain and in which each Party has a proprietary or ownership interest (hereinafter referred to as “Confidential Information”); and WHEREAS, the Parties have an interest in participating in discussions regarding a potential strategic business transaction (the “Proposed Transaction”) wherein either Party might share such Confidential Information with the other Party The Parties agree as follows: 1. Confidential Information. As used in this Agreement, “Confidential Information” means all information whether of a technical, business, financial or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, customers, business plan, copyrights, trademarks, patents, promotional and marketing activities, finances and other business affairs) that is or may be disclosed or imparted by one Party to the other. Confidential Information also includes any other document provided by a Party that is clearly marked or otherwise identified as “Confidential”. Confidential Information also includes both the existence and content of discussions between the Parties with respect to a potential business transaction or relationship. Confidential Information may be in any written format, including an email transmission via electronic media and oral information. 2. Use of Confidential Information. Each Party agrees to use the Confidential Information exclusively for the purpose of the Proposed Transaction. Except as expressly provided in this Agreement, the Party receiving Confidential Information (“Receiving Party”) shall not use the Confidential Information in any manner or disclose the Confidential Information to any third party without prior written consent of the Party making the disclosure (“Disclosing Party”). 3. Protection of Confidential Information. The Receiving Party agrees that it will use diligent efforts to protect the secrecy and confidentiality of and avoid disclosure of the Confidential Information of the Disclosing Party, including implementing equivalent security measures and degree of care that the Receiving Party uses to protect its own proprietary or confidential information. 4. Exceptions. Confidential Information shall not include any information that: (i) is publicly available to the Receiving Party without breach of this Agreement; (ii) is known by and in the possession of the Receiving Party as at the date of execution of this Agreement; (iii) is rightfully received by the Receiving Party from a third party who did not acquire or disclose such information by a wrongful or tortuous act, or in breach of a confidentiality restriction; (iv) is independent developed by the Receiving Party without use of any Confidential Information; or (v) is required to be disclosed by applicable law, regulation, stock exchange rule or judicial process. 5. Receiving Party Personnel. The Receiving Party shall expressly restrict the possession, knowledge, development and use of Confidential Information to its partners, employees, consultants, professional advisors, agents, subcontractors and entities controlled by the Receiving Party or hired or engaged by the Receiving Party who have: (i) been determined to have a need to know, (ii) been advised of the proprietary nature of the Confidential Information being disclosed, (iii) been advised of their obligations as set forth in this Agreement to keep such Confidential Information confidential, and (iv) been placed under an obligation to the Receiving Party to preserve Confidential Information in confidence. 6. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party will have no rights, by license or otherwise, to use or disseminate the Confidential Information except as expressly provided in this Agreement. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise conveyed by this Agreement. 7. Return of Confidential Information. Within ten (10) days of receiving notice from the Disclosing Party, the Receiving Party shall promptly return or destroy (and verify in writing its destruction) all material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information and all electronic media or records containing or derived from Confidential Information). 8. Non Solicit. Each Party agrees that for a period of two (2) years from the date hereof, neither Party will, without the prior written consent of other, directly or indirectly solicit for employment or hire any employee, consultant, officer or director of the other Party with whom the Party has had contact or who became known to the Party in connection with the Proposed Transaction. Notwithstanding the foregoing, a Party shall not be precluded from hiring any such employee, consultant, officer or director who (i) responds to any public advertisement placed by the Party or (ii) has been terminated by the other Party prior to commencement of employment discussions between the Party and such employee, consultant, officer or director. 9. No Obligation to Close. Unless and until the Parties execute a definitive agreement regarding a Proposed Transaction, neither Party is under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this Agreement, except for the matters specifically agreed to herein. Further, each Party hereby waives all claims (including breach of contract) in connection with any Proposed Transaction with the other party unless and until both Parties have executed a final definitive agreement. Each Party shall have the right, in its sole discretion, to reject or accept any potential proposal, or offer, and to terminate any discussions and negotiations, at any time and for any or no reason. 10. Judicial or Government Investigations. In the event that either Party is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information of the other Party, such Party shall provide the other Party with prompt written notice of any such request or requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, each Party agrees to (i) furnish only that portion of the Confidential Information for which the other Party has waived compliance or for which the Disclosing Party is advised by written opinion of counsel, reasonably satisfactory to the other Party, is required by law, rule, regulation or court order and (ii) exercise its reasonable efforts to obtain assurance that the Confidential Information will be accorded such confidential treatment. 11. No Warranties. Each Party acknowledges and agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information of the other Party and that it will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to a Proposed Transaction between the Parties, subject to such limitations and restrictions as may be contained therein. Each Party further acknowledges and agrees that it has no liability to the other Party relating to or resulting from the use of the other Party’s Confidential Information. 12. Term. The term of this Agreement shall be for a period of two (2) years from the date hereof. 13. Injunctive Relief. Each Party acknowledges and agrees that disclosure or use of Confidential Information in violation of this Agreement may cause irreparable harm to the owner thereof, for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, each Party agrees that the owner of Confidential Information may seek, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement. 14. Limited Relationship. This Agreement shall not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party shall act as an independent contractor and not as an agent of the other Party for any purpose, and neither shall have the authority to bind the other. 15. Non-waiver. Any failure by either Party to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of the right to subsequently enforce such provision or any other provision of this Agreement. 16. Governing Law. This Agreement shall be governed by laws of the Commonwealth of Virginia and any legal action hereunder may be brought in an appropriate federal or state court located in Fairfax County, Virginia. The prevailing Party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any such action. 17. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to reform any and all terms or conditions to give them such effect. 18. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the Parties relating to the matters discussed herein and may be amended or modified only with the mutual written consent of the Parties. 19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute for an agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Kingswood Capital Management, LLC Versar, Inc. By: /s/ Alex Wolf By: /s/ James Villa Printed Name: Alex Wolf Printed Name: James Villa Title: Managing Member Title: Senior Vice President, General Counsel, Secretary, Chief Compliance Officer

Entailment

524_nda-11

524_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Not mentioned

524_nda-16

524_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Not mentioned

524_nda-15

524_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Not mentioned

524_nda-10

524_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

524_nda-2

524_nda-2_0

Q: Confidential Information shall only include technical information. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Contradiction

524_nda-1

524_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Not mentioned

524_nda-19

524_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

524_nda-12

524_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

524_nda-20

524_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Contradiction

524_nda-3

524_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Not mentioned

524_nda-18

524_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

524_nda-7

524_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

524_nda-17

524_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Not mentioned

524_nda-8

524_nda-8_0

Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

524_nda-13

524_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

524_nda-5

524_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

524_nda-4

524_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: MUTUAL NONDISCLOSURE, NONSOLICITATION AND EXCLUSIVITY AGREEMENT This Mutual Nondisclosure, Nonsolicitation and Exclusivity Agreement ("Agreement") is made August 31, 2000, by and between Best Buy Co., Inc. ("BBY") and Musicland Stores Corporation (the "Company"). A. BBY and the Company are mutually considering a possible business combination transaction involving the Company and BBY (the "Transaction"); B. During the negotiations relating to the Transaction, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, technical drawings, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information) (hereinafter "Evaluation Material" of the Disclosing Party) to each party and its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives" and, where applicable, the terms "Disclosing Party" and "Receiving Party" include such parties' Representatives); and C. The parties wish to undertake negotiations relating to the Transaction and the exchange of Evaluation Material while maintaining the confidential nature of the pendency of such negotiations and the Evaluation Material both during and after such negotiations are concluded and as a condition to each party furnishing information to the other party, each party agrees to enter into this Agreement; NOW, THEREFORE, in consideration of the foregoing, and any access of the Receiving Party to Evaluation Material of the Disclosing Party, the parties hereby agree as follows: 1. Evaluation Material. The term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by each party or its Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to such party or its Representatives pursuant hereto which is not available to the general public. The term "Evaluation Material" does not include information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving Party, (ii) was within the Receiving Party's possession prior to its being furnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, (iii) is 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, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) is independently developed by the Receiving Party without use of Evaluation Material. 2. Use of Evaluation Material. Each party hereby agrees that it and its Representatives shall use the other's Evaluation Material solely for the purpose of evaluating a possible Transaction between the parties, and that the Disclosing Party's Evaluation Material will be kept confidential and each party and its Representatives will not disclose or use for purposes other than the evaluation of a Transaction any of the other's Evaluation Material in any manner whatsoever, provided, however, that (i) the Receiving Party may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any of such information may be disclosed to the Receiving Party's Representatives who need to know such information for the sole purpose of evaluating a possible Transaction between the parties, who are provided with a copy of this Agreement and who are directed by the Receiving Party to treat such information as confidential and agrees to treat such Evaluation Material in accordance with the terms of this Agreement. 3. Securities Laws. Each party acknowledges that it is aware, and will advise its Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person who has received from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. 4. Non-Disclosure. In addition, each party agrees that, without the prior written consent of the other party, its Representatives will not disclose to any other person the fact that any Evaluation Material has been made available hereunder, that discussions or negotiations are taking place concerning a Transaction involving the parties or any of the terms, conditions or other facts with respect thereto (including the status thereof) provided, that a party may make such disclosure if in the written opinion of a party's outside legal counsel, such disclosure is necessary to avoid committing a violation of law. In such event, such party shall use its best efforts to give advance notice to the other party. 5. Required Disclosure. In the event that a party or its Representatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the other party's Evaluation Material or the fact that such Evaluation Material has been made available to such party or that discussions are taking place concerning a possible Transaction or any of the terms or conditions or other facts related thereto, the party requested or required to make the disclosure shall provide the other party with prompt notice of any such request or requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by such other party, the party requested or required to make the disclosures or any of its Representatives are nonetheless, in the opinion of counsel (which counsel shall be independent legal counsel selected by counsel to the party requested or required to make disclosure and reasonably acceptable to counsel to the other party if such disclosure is requested or required in connection with a matter in which the parties hereto are adverse or relates to information that is reasonably likely to be utilized in or relevant to a matter in which the parties hereto have or may reasonably be expected to have adverse interests), legally compelled to disclose the other party's Evaluation Material to any tribunal, the party requested or required to make the disclosure or its Representative may, without liability hereunder, disclose to such tribunal only that portion of the other party's Evaluation Material which such counsel advises is legally required to be disclosed, provided that the party requested or required to make the disclosure exercises its reasonable efforts to preserve the confidentiality of the other party's Evaluation Material, including, without limitation, by cooperating with the other party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party's Evaluation Material by such tribunal. 6. Termination of Negotiations. If either party decides that it does not wish to proceed with a Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination of negotiations. In that case, or at any time upon the request of either Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party or destroy all written Evaluation Material (and all copies thereof and extracts therefrom) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party pursuant hereto and such destruction shall be certified in writing by an authorized officer supervising such destruction. In the event of such a decision or request, all other Evaluation Material prepared by the requesting party shall be destroyed, no copy thereof shall be retained and such destruction shall be certified in writing by an authorized officer supervising such destruction, and in no event shall either party be obligated to disclose or provide the Evaluation Material prepared by it or its Representatives to the other party. Notwithstanding the return or destruction of the Evaluation Material, upon any termination of negotiations, each party and its Representatives will continue to be bound by its obligations of confidentiality and all other obligations hereunder. 7. No Representation of Accuracy. Each party understands and acknowledges that neither party nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material made available by it or to it. Each party agrees that neither party nor any of its Representatives shall have any liability to the other party or to any of its Representatives relating to or resulting from the use of or reliance upon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive agreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect. 8. Definitive Agreements. Each party understands and agrees that no contract or agreement providing for any Transaction involving the parties shall be deemed to exist between the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final definitive agreement regarding a Transaction between the parties has been executed and delivered, neither party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. For purposes of this paragraph, the term "definitive agreement" does not include an executed letter of intent, term sheet or any other preliminary written agreement. 9. Non-Solicitation. BBY agrees that for a period of fifteen (15) months from the date hereof (the "Restricted Period"), without the prior written consent of the Company, neither its officers, any other employee of BBY authorized to recruit employees for BBY nor its directors will directly or indirectly solicit to employ any exempt (salaried) non-store employee of the Company who is employed at the level of director or above (each a "Restricted Employee"); provided, however, that in the absence of prior contact with a Restricted Employee during the Restricted Period, general recruitment advertising or communications to which such Restricted Employee responds shall not be considered a solicitation for purposes of this Section 9. In addition, BBY agrees that during the Restricted Period, BBY shall not employ any Restricted Employee BBY solicited for employment during the six (6) month period immediately preceding the date hereof. 10. Exclusive Dealing. In order to cause BBY to be willing to spend the time and incur the expense necessary to conduct due diligence and undertake negotiations related to the Transaction, the Company agrees that it will not, and will not permit any director, officer, authorized employee, agent or other representative of the Company to, negotiate, solicit or encourage, or (subject to the fiduciary duties of the Company's Board of Directors), respond to any inquiries (other than a response that merely defers a substantive response until after the expiration of the Exclusivity Period, as defined below) or requests for non-public information relating to, any proposal for the combination of the Company with any other party or sale or other disposition of the Company or a substantial portion of its assets (whether by means of a negotiated sale of securities or assets, tender or exchange offer, merger or other business combination, recapitalization, restructuring or other transaction) (collectively referred to herein as a "Sale") with or from any other party from and after the date hereof through and including the earlier of (a) the date upon which BBY gives notice, in accordance with Section 6 of this Agreement, to the Company that it does not wish to proceed with a Transaction, or (b) October 6, 2000 (the "Exclusivity Period"). In addition, the Company agrees that it will immediately cease from the date hereof through the end of the Exclusivity Period any existing negotiations with any party other than BBY or its affiliates in respect of a Sale. The Company will promptly notify Richard Zona if it receives, at any time during the Exclusivity Period, any offers, proposals, inquiries or requests for non-public information concerning a Sale. If Mr. Zona determines in his reasonable discretion that any such offer, proposal, inquiry or request for information is likely to result in an Other Offer (as defined below), then the Company shall immediately notify BBY of such offer, proposal, inquiry or request for information. For purposes of this Section 10, an "Other Offer" shall mean an unsolicited offer concerning a Sale received by the Company during the Exclusivity Period which, pursuant to its fiduciary obligations, the Board of Directors of the Company concludes, after receiving the advice of outside counsel and financial advisers, that it must consider and respond to prior to the expiration of the Exclusivity Period. The Company may consider and respond to an Other Offer prior to the expiration of the Exclusivity Period provided it (i) promptly advises BBY of the receipt of such Other Offer and the Board's conclusions with respect thereto, (ii) promptly advises BBY of the terms of such Other Offer, including the identity of the offeror, and (iii) considers at the same meeting at which such Other Offer is to be considered any amended offer submitted by BBY for consideration by the Company's Board of Directors. Nothing contained in this Section 10 shall prohibit the Company or its Board of Directors from taking and disclosing to its shareholders a position with respect to an Other Offer as contemplated by Rule 14e-2(a) promulgated under the Securities Exchange Act of 1934, as amended. In connection with any such Other Offer, the Company will only provide information to such third party if such third party has executed a confidentiality agreement in substantially the same form as the confidentiality provisions of this Agreement, and BBY is provided with copies of all information given to the other party which was not previously provided to BBY. The Company will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party unless and until the parties hereto have terminated their negotiations pursuant to Section 6 above. In consideration of the Company's agreement hereto, BBY agrees to diligently pursue its due diligence review during the Exclusivity Period and agrees further to notify the Company within forty-eight (48) hours of any determination not to proceed with a transaction as contemplated by the parties. 11. Future Conduct of BBY. BBY agrees that until the expiration of one (1) year from the date the Exclusivity Period expires, and except with the express written consent of the Company, neither BBY nor any of its directors or executive officers shall: (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, more than 3% in the aggregate of any equity securities of the Company or any of its subsidiaries, (ii) propose to enter into, directly or indirectly, any merger or business combination involving the Company or any of its subsidiaries or to purchase, directly or indirectly, a material portion of the assets of the Company or any of its subsidiaries, (iii) make, or in any way participate in, directly or indirectly, any "solicitation of proxies" (as such term is used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of the Company or any of its subsidiaries, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any voting securities of the Company or any of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or encourage any other person in connection with any of the foregoing. 12. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 13. Miscellaneous. Each party agrees to be responsible for any breach of this Agreement by any of its Representatives. No failure or delay by either party or any of its Representatives in exercising any right, power or privileges under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege hereunder, and the non-breaching party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either party or any of its Representatives have breached this Agreement, then the breaching party shall be liable and pay to the non-breaching party the reasonable legal fees incurred in connection with such litigation, including an appeal therefrom. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability, of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. 14. Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Minnesota, without giving effect to the principles of conflicts of laws thereof. Venue for any action to enforce the provisions of this Agreement shall be properly laid in any state or federal court in the State of Minnesota. 15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. MUSICLAND STORES CORPORATION By: /s/ JACK W. EUGSTER Jack W. Eugster Chairman, President and Chief Executive Officer BEST BUY CO., INC. By: /s/ RICHARD M. SCHULZE Richard M. Schulze Chairman and Chief Executive Officer

Entailment

525_nda-11

525_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Not mentioned

525_nda-16

525_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Entailment

525_nda-15

525_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Entailment

525_nda-10

525_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Entailment

525_nda-2

525_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Contradiction

525_nda-1

525_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Not mentioned

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525_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Entailment

525_nda-12

525_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Not mentioned

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Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Entailment

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Q: Confidential Information may include verbally conveyed information. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Not mentioned

525_nda-18

525_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Entailment

525_nda-7

525_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Entailment

525_nda-17

525_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

Not mentioned

525_nda-8

525_nda-8_0

Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. Text: Exhibit (d)(8) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Radiant Systems, Inc., a Georgia corporation, and NCR Corporation, a Maryland corporation (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or refrain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives to the extent they contain or are based upon the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, each Company agrees that, without the prior written consent of the other Company, such Company will not, and it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or its Representatives are nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days of receipt of such notice, destroy or return all Evaluation Material, except for that portion of notes, analyses, compilations, studies, interpretations or other documents or records prepared by the Recipient or its Representatives which does not contain in any respect any of the Evaluation Materials, in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained, except that Recipient’s outside legal counsel may retain one copy to be kept confidential and used solely for the purpose of establishing Recipient’s compliance with its obligations hereunder. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within one year from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers or employees of the Provider, so long as they are employed by the Provider and for three months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Party agrees that, for a period of six months from the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Party, neither it nor any of its affiliates (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the securities of the other Party; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Party or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Party; (e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during the Standstill Period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence); provided, that this provision shall not prohibit any request to amend or waive any provision of this Section 8 which is not publicly announced or disclosed by the requesting party and does not otherwise violate this Section 8. The provisions of this paragraph shall be inoperative and of no force or effect if a Competing Transaction occurs with respect to a Party. “Competing Transaction” shall mean that a person (as defined by Section 13(d)(3) of the Exchange Act): (i) enters into a definitive agreement with such Party providing for the merger or consolidation, or any similar transaction, in which the persons or entities who, immediately prior to such transaction, had beneficial ownership of more than 50% of the voting power of such Party would not continue to beneficially own at least 50% of the voting power of the combined entity or would not have the ability to elect a majority of the directors of the combined entity following such transaction; (ii) commences or publicly announces its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of such Party, or securities convertible into or any options or other rights to acquire more than 50% of the outstanding voting securities of such Party; (iii) enters into a definitive agreement with such Party providing for the purchase or other acquisition of, or purchases or otherwise acquires, a material portion of the assets of such Party; or (iv) enters into a definitive agreement with such Party providing for the purchase or acquisition of, or purchases or acquires, beneficial ownership of securities representing more than 50% of the voting power of such Party. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State. 16. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 17. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 18. Term. This Agreement shall terminate two years after the date of this Agreement. 19. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and. discussions between the Companies regarding such subject matter. 20. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representatives as of May 27 , 2011.th RADIANT SYSTEMS, INC. NCR CORPORATION By: /s/ Mark Haidet By: /s/ Pooja Lal Name: Mark Haidet Name: Pooja Lal Title: CFO Title: VP, Business Development

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