Datasets:

urialon

/

converted_contract_nli

like 0

550_nda-18

550_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022. W I T N E S S E T H: WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material"). NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof): (1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. (2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains. (3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material. (4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws. (5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki. (6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. (7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment. (8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity. (9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement. IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above. SCIENTIFIC GAMES CORPORATION By: /s/ MARTIN E. SCHLOSS Name: Martin E. Schloss Title: Vice President MDI ENTERTAINMENT, INC. By: /s/ STEVEN M. SAFERIN Name: Steven M. Saferin Title: Chief Executive Officer

Not mentioned

550_nda-7

550_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022. W I T N E S S E T H: WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material"). NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof): (1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. (2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains. (3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material. (4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws. (5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki. (6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. (7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment. (8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity. (9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement. IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above. SCIENTIFIC GAMES CORPORATION By: /s/ MARTIN E. SCHLOSS Name: Martin E. Schloss Title: Vice President MDI ENTERTAINMENT, INC. By: /s/ STEVEN M. SAFERIN Name: Steven M. Saferin Title: Chief Executive Officer

Entailment

550_nda-17

550_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022. W I T N E S S E T H: WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material"). NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof): (1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. (2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains. (3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material. (4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws. (5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki. (6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. (7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment. (8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity. (9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement. IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above. SCIENTIFIC GAMES CORPORATION By: /s/ MARTIN E. SCHLOSS Name: Martin E. Schloss Title: Vice President MDI ENTERTAINMENT, INC. By: /s/ STEVEN M. SAFERIN Name: Steven M. Saferin Title: Chief Executive Officer

Not mentioned

550_nda-8

550_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 CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022. W I T N E S S E T H: WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material"). NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof): (1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. (2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains. (3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material. (4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws. (5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki. (6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. (7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment. (8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity. (9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement. IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above. SCIENTIFIC GAMES CORPORATION By: /s/ MARTIN E. SCHLOSS Name: Martin E. Schloss Title: Vice President MDI ENTERTAINMENT, INC. By: /s/ STEVEN M. SAFERIN Name: Steven M. Saferin Title: Chief Executive Officer

Entailment

550_nda-13

550_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022. W I T N E S S E T H: WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material"). NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof): (1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. (2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains. (3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material. (4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws. (5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki. (6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. (7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment. (8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity. (9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement. IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above. SCIENTIFIC GAMES CORPORATION By: /s/ MARTIN E. SCHLOSS Name: Martin E. Schloss Title: Vice President MDI ENTERTAINMENT, INC. By: /s/ STEVEN M. SAFERIN Name: Steven M. Saferin Title: Chief Executive Officer

Entailment

550_nda-5

550_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022. W I T N E S S E T H: WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material"). NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof): (1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. (2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains. (3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material. (4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws. (5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki. (6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. (7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment. (8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity. (9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement. IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above. SCIENTIFIC GAMES CORPORATION By: /s/ MARTIN E. SCHLOSS Name: Martin E. Schloss Title: Vice President MDI ENTERTAINMENT, INC. By: /s/ STEVEN M. SAFERIN Name: Steven M. Saferin Title: Chief Executive Officer

Entailment

550_nda-4

550_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT This Mutual Confidentiality and Non-Disclosure Agreement (this "Agreement") is made this day of March, 2002, and effective as of February 26, 2002, between MDI Entertainment, Inc. ("MDI"), whose address is 201 Ann Street, 5th Floor, Hartford, Connecticut 06103 and Scientific Games Corporation ("Scientific Games") whose address is 750 Lexington Avenue, 25th Floor, New York, New York 10022. W I T N E S S E T H: WHEREAS, in connection with the analyses of a possible negotiated transaction between MDI and Scientific Games (collectively, the "Companies"), each of the Companies has requested or will request certain oral and written information concerning the other Company from the officers, directors, employees and/or agents of the respective Companies (collectively, the "Evaluation Material"). NOW, THEREFORE, in consideration of the premises, each of which is made a contractual part hereof, MDI and Scientific Games agree in consideration of furnishing the other party with the Evaluation Material (it being understood that the parties are also agreeing to cause such of their respective affiliates, representatives and agents, including but not limited to, investment bankers, attorneys and accountants, which are provided with the Evaluation Material to comply with the provisions hereof): (1) The Evaluation Material will be used solely for the purpose of evaluating a possible transaction between the Companies and not in any way directly or indirectly detrimental to the Companies (competitively or otherwise), and unless and until the parties have completed a transaction pursuant to a formal contractually binding agreement ("Definitive Agreement"), such information will be kept confidential, except that each party may disclose the Evaluation Material or portions thereof to those of its directors, officers, employees, consultants, advisors and professional representatives (the persons to whom such disclosure is permissible being collectively called "Representatives") in each case who need to know such information for the purpose of evaluating a possible transaction between the Companies; provided, however, that prior to disclosing the Evaluation Material or any portion thereof to any of such Representatives, the disclosing party will secure the undertaking of its Representative to be bound by the terms of this Confidentiality Agreement to the same extent that the disclosing party is bound by this Agreement. Each party agrees to be responsible for any breach of this Agreement or such undertaking by it or its Representatives. In the event that either party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Evaluation Material, such party shall provide the other party with prompt prior written notice of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the other party waives compliance with the provisions hereof, the disclosing party agrees to furnish only that portion of the Evaluation Material which it is advised by written opinion of its counsel is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. (2) The term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to and known by the public (other than in the case of Evaluation Material for Scientific Games as a result of a disclosure directly or indirectly by MDI or its Representatives and in the case of Evaluation Material for MDI as a result of a disclosure directly or indirectly by Scientific Games or its Representatives), (ii) was or becomes available to Scientific Games or MDI on a nonconfidential basis from a source other than the other party or its advisors, provided that such source is not and was not bound by a confidentiality agreement with or for the benefit of the party with respect to whom the information pertains, or (iii) was in the possession of the disclosing party prior to the date of this Agreement and was obtained by such party without the breach, directly or indirectly, by such party or any other person of any obligation or duty owed to the party with respect to whom the information pertains. (3) If a transaction between the Companies is not consummated or if either party at any time so requests, each party will promptly return to the other party all copies of the Evaluation Material in its possession or in the possession of its Representatives, and each party will destroy all copies of any analyses, compilations, studies or other documents prepared by it or for its use containing or reflecting any Evaluation Material. (4) Without the prior written consent of the other party, each party will not, and will cause its Representatives not to, disclose to any person either the status of the investigations, discussions or negotiations taking place concerning a possible transaction between the parties, or that either party has requested or received Evaluation Material from the other party or any of the terms, conditions or other facts with respect to any such possible transaction except as disclosed in that certain letter of intent between the parties dated February 25, 2002. The term "person" as used in this Agreement will be interpreted broadly to include, without limitation, any corporation, company, partnership or individual. The obligations of Scientific Games and MDI under this paragraph (4) shall be subject to their disclosure obligations under federal and state securities laws. (5) It is understood that each party will arrange for appropriate contacts for due diligence purposes. It is further understood that all (i) communications regarding the possible negotiated transaction contemplated hereby, (ii) requests for additional information, (ii) requests for facility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed, in the case of Scientific Games, to Mr. Martin E. Schloss or Mr. C. Gray Bethea, Jr., and in the case of MDI, to Steve M. Saferin or Kenneth M. Przysiecki. (6) Each party understands and acknowledges that the other party is making no representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and neither the disclosing party, nor any of its respective officers, directors, employees, stockholders, affiliates or agents will have any liability to the other party or any other person resulting from such other party's use of the Evaluation Material. Only those representations or warranties that are made to MDI or Scientific Games, as the case may be, in a Definitive Agreement when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. (7) Each party also understands and agrees that no contract or agreement providing for any transaction shall be deemed to exist between the parties unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other party or any of its businesses based on the purported existence of any such contract or agreement unless and until and only to the extent that the parties shall have entered into a Definitive Agreement with respect to which a breach is alleged. Each party also agrees that unless and until a Definitive Agreement between the parties with respect to a negotiated transaction has been executed and delivered, neither of the parties nor their stockholders has any legal obligation of any kind whatsoever with respect to any such transaction by virtue of this Agreement or any other written or oral expression with respect to such transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid on the part of either party. Each party further understands that (i) each party shall be free to negotiate for or with respect to any transaction respecting itself or any or all of its business as such party in its sole discretion shall determine (including, without limitation, negotiating with any of prospective merger partners, sellers or buyers and entering into a Definitive Agreement respecting any thereof without prior notice to the other party or any other person) and (ii) each party shall not have any claims whatsoever against the other party, or any of such other party's respective directors, officers, stockholders, affiliates or agents arising out of or relating to any such transaction (other than those as against the parties to a Definitive Agreement with you in accordance with the terms thereof). Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of the party which is sought to be bound, which consent shall specifically make such waiver or amendment. (8) Each party agrees that the other party shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the other part at law or in equity. (9) It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement is for the benefit of the parties and will be governed by and construed in accordance with the laws of the State of Delaware. The obligations of the parties under this Agreement will expire three (3) years from the date of this Agreement. IN WITNESS WHEREOF, the undersigned, by their duly authorized officers have caused this Agreement to be executed as of the date first written above. SCIENTIFIC GAMES CORPORATION By: /s/ MARTIN E. SCHLOSS Name: Martin E. Schloss Title: Vice President MDI ENTERTAINMENT, INC. By: /s/ STEVEN M. SAFERIN Name: Steven M. Saferin Title: Chief Executive Officer

Entailment

551_nda-11

551_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Not mentioned

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Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Not mentioned

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Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Not mentioned

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Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

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Q: Confidential Information shall only include technical information. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Contradiction

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Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Not mentioned

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Q: Some obligations of Agreement may survive termination of Agreement. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

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Q: Receiving Party may independently develop information similar to Confidential Information. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

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Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Contradiction

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Q: Confidential Information may include verbally conveyed information. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

551_nda-18

551_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

551_nda-7

551_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

551_nda-17

551_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Not mentioned

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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: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

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551_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

551_nda-5

551_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Entailment

551_nda-4

551_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: STRICTLY CONFIDENTIAL October 7, 2011 Russian Standard Vodka Pulkovskoye Shosse, 46/2, Saint-Petersburg, 196140, Russia Attention: Ilya Blinov General Manager Russian Standard Vodka Dear Mr. Blinov: CONFIDENTIALITY AGREEMENT This Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the “Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”). 1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order to assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information concerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons with whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are acting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of the Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement. (b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and identified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or strategic plans, compilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary, computerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations with Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential Information”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of its disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic information with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement. 2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other than as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’ possession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the Receiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with regards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this Agreement. 3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives to, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such information in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives. (b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the Confidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate contact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not based on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the hiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or hiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment. 4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by applicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company Representatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a possible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the Receiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in the context of its discussions with the Company. 5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential Information at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys, accountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. 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 Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal effect. 6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or destroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding the return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the foregoing, any return or destruction is subject to law, regulation and internal document retention policies. 7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as otherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly notify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such portion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be disclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that confidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or any portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any aspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the confidential nature of such information. 8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind whatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. 9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made whole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement. 10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the Receiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as designated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication concerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation between the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any officer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive Officer of the Company Bill Carey. 11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been advised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or selling securities of that company 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. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to trade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries. 12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 13. No Waiver. 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 further exercise thereof or the exercise of any right, power or privilege hereunder. 14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives; (c) irrevocably and unconditionally waive 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 New York; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and unconditionally agree 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 New York has been brought in an inconvenient forum. 15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable judgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party has incurred in connection with such litigation, including any appeal therefrom. 16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any provisions of this Agreement. 17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. 18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof. [Remainder of Page Intentionally Left Blank] IN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above. CENTRAL EUROPEAN DISTRIBUTION CORPORATION By: /s/ Christopher Biedermann Name: Christopher Biedermann Title: CFO Russian Standard Vodka By: /s/ Ilya Blinov Name: Ilya Blinov Title: General Manager

Not mentioned

553_nda-11

553_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

553_nda-16

553_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Entailment

553_nda-15

553_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

553_nda-10

553_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Entailment

553_nda-2

553_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Contradiction

553_nda-1

553_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

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553_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Entailment

553_nda-12

553_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

553_nda-20

553_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Contradiction

553_nda-3

553_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

553_nda-18

553_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Entailment

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553_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

553_nda-17

553_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

553_nda-8

553_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 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

553_nda-13

553_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

553_nda-5

553_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Not mentioned

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Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: Exhibit 10.5 NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT THIS NON-COMPETE, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 8 day of February, 2007, by and among Heritage Commerce Corp, a California Corporation (“Heritage”), Heritage Bank ofth Commerce, a California banking corporation (“HBC”) and James Mayer (“Shareholder”). WHEREAS, concurrently with the execution of this Agreement, Heritage, HBC and Diablo Valley Bank (“Diablo”) have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of February 8, 2007 whereby on the Effective Date (as defined in the Merger Agreement) Diablo will merge with and into HBC and HBC shall survive the merger (the “Merger”). WHEREAS, Shareholder is the President and Chief Executive Officer of Diablo and beneficially owns approximately 5.77% of the issued and outstanding shares of Diablo common stock; WHEREAS, Shareholder acknowledges that the execution and delivery of this Agreement by Shareholder is a condition precedent to the obligations of the parties entering into the Merger Agreement and the consummation of the Merger, and Shareholder acknowledges and agrees that Heritage, HBC and Diablo would not proceed forward and consummate the transactions contemplated under the Merger Agreement unless Shareholder enters into this Agreement; WHEREAS, Heritage, HBC and Shareholder acknowledge that the covenants and agreements of Shareholder contained in this Agreement are necessary to protect and preserve Diablo’s business for the benefit of Heritage and HBC after consummation of the transactions contemplated by the Merger Agreement; WHEREAS, Shareholder has significant knowledge and information concerning the business of Diablo and that such business is very competitive; WHEREAS, Shareholder will receive significant consideration for the Shareholder’s exchange of his Diablo common stock through the Merger; WHEREAS, HBC has agreed to provide Shareholder with a three year employment agreement pursuant to which Shareholder will become an Executive Vice President of HBC on the Effective Date (as defined herein); WHEREAS, this Agreement shall become effective at the Effective Time (as defined in the Merger Agreement) of the Merger (the “Effective Date”); NOW, THEREFORE, in consideration of the promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are mutually acknowledged by each party, it is agreed as follows: 1. Definitions. Capitalized terms used in this Agreement not otherwise defined have the meaning given such term in the Merger Agreement. For purposes of this Agreement, the term “Business” means the business of banking (including, without limitation, the acceptance of deposits and the making of loans) as conducted by state chartered banks, nationally chartered banks or office of thrift supervision chartered institutions conducting business in the state of California (a) to be undertaken in the formation of a new banking organization or (b) engaged in by an existing banking organization with $1 billon or less of assets. 2. Purpose. Shareholder acknowledges and agrees that the market for the Business is very competitive within the Restrictive Territory (as defined herein), and one way that Diablo maintained its business and its competitive position in the marketplace prior to the Closing was by investing time and money in developing proprietary products, unique approaches to the business, banking systems and strong client, vendor, and employee relationships. Shareholder further acknowledges and agrees that proprietary and other information related to such products, approaches and relationships are highly confidential, and maintaining that confidentiality is critical to Diablo’s success. Shareholder further acknowledges and agrees that Diablo has invested substantial time and resources into developing relationships, customer lists and business models and strategies and that disruption of such relationships or misuse of such lists, models, and strategies would damage Heritage and HBC. 3. Shareholder Covenants. (a) Non-Competition. Shareholder hereby covenants and agrees that from the Effective Date until the third (3 )rd anniversary of the Effective Date (“Restricted Period”), Shareholder will not without the prior written consent of Heritage, engage or participate or have any interest, directly or indirectly, in any Business anywhere in the counties of Santa Clara, Alameda, Contra Costa, Marin, San Francisco and San Mateo located in the State of California (“Restricted Territory”) (all such entities shall be referred to each as “Competitor” or collectively as “Competitors,”), with respect to the following acts: (i) own any equity interest in any Competitor; (ii) operate, join, control, advise, become a founder or otherwise participate in any Competitor; (iii) lend credit or money for the purpose of assisting another to establish or operate any Competitor; (iv) request or advise any customer, strategic partner or vendor of Diablo that becomes a present or future customer, strategic partner or vendor of Heritage, HBC or their subsidiaries now and hereinafter existing (collectively, the “Affiliated Companies”) to withdraw, curtail or cancel its business with Heritage, HBC or the Affiliated Companies anywhere in the Restricted Territory; (v) induce or influence (or attempt to induce or influence) any person or entity who is engaged (as an employee, agent, independent contractor or otherwise) by Heritage, HBC or the Affiliated Companies to terminate his, her or its employment or engagement for the purpose of obtaining employment with a Competitor; (vi) solicit any employee of Heritage, HBC or the Affiliated Companies to leave employment and become affiliated with any Competitor; (vii) solicit any actual or “prospective customer” (as hereinafter defined), which was served by Diablo in connection with any business of Diablo, or (viii) solicit, influence or attempt to influence any customer which is or was served by Diablo to discontinue its business or service available from Heritage, HBC or the Affiliated Companies; provided, that, Shareholder may own and hold as an investment of up to 1% of any corporation within the Restricted Territory that is listed on a national stock exchange and that is engaged in a business that is competitive with Heritage, HBC or an Affiliated Company, but Shareholder may not otherwise participate (whether in management or otherwise) in such corporation. A “prospective customer” shall mean a company, person or other entity with which Shareholder knows, or reasonably should know, that Diablo has had actual contact with or has begun formulating a targeted strategy for contact at any time during the term of this Agreement in connection with the operation of the Business. “Engaged in business” shall include, without limitation, establishment of goodwill or business reputation, maintenance of business assets and properties, and dealings with customers, strategic partners, prospective customers, suppliers, or vendors. (b) Confidentiality. Shareholder acknowledges and agrees that the Shareholder has occupied a position of trust and confidence with Diablo prior to the date hereof and has had access to and has become familiar with the following, any and all of which constitutes confidential information of Diablo (collectively “Confidential Information”) (a) any and all proprietary intellectual property or trade secrets concerning the business and affairs of Diablo, product specifications, data, know-how, formulae, compositions, processes, designs, graphs, drawings, samples, inventions and ideas, past, current and planned research and development, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), database technologies, systems, structures, architectures, processes, improvements, devices, know-how, discoveries, concepts, methods, information of Diablo and any other information, however documented, of Diablo that is a trade secret within the meaning of any applicable law; (b) any and all proprietary non-public information concerning the business and affairs of Diablo (which includes any historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, contractors, agents, suppliers, personnel training, techniques and materials, manufacturing methods, designs and techniques, purchasing methods and techniques, however documented; and (c) any and all notes, analyses, compilations, studies, summaries and other material prepared by or for Diablo containing or based, in whole or part, upon any information included in the foregoing. Shareholder acknowledges and agrees that the protection of the Confidential Information is necessary to protect and preserve the value of Diablo’s business and proprietary properties being acquired by Heritage and HBC. Therefore, Shareholder hereby agrees not to, at any time, disclose to any unauthorized Persons or use for his or its own account or for the benefit of any third party any Confidential Information, whether or not such information is embodied in writing or other physical form or is retained in the memory of Shareholder, without Heritage’s written consent, unless and to the extent that the Confidential Information is or becomes generally known to and available for use by the public other than as a result of Shareholder’s fault or the fault of any other Person bound by a duty of confidentiality to Heritage, HBC or the Affiliated Companies. Shareholder agrees to deliver to Heritage at the Effective Date, and at any other time Heritage may request, all documents, memoranda, notes, plans, records, reports and other documentation, models, components, devices or computer software, whether embodied in a disk or in other form (and all copies of all of the foregoing), that contain Confidential Information and any other Confidential Information that Shareholder may then possess or have under Shareholder’s control. (c) Breach. Shareholder, Heritage and HBC each recognize and acknowledge that the Confidential Information and other knowledge Shareholder has about Diablo and has and will obtain from Heritage, HBC or the Affiliated Companies is special and unique, and any violation of the covenants contained in this Agreement is likely to cause irreparable damage to Heritage, HBC or the Affiliated Companies. Therefore, the parties agree that, upon any breach of any covenant contained in this Section 3 by Shareholder, Heritage and HBC shall be entitled to an appropriate injunction for a violation of such covenant, threatened or actual, of such covenant, in addition to all other relief available under applicable law. If a court or arbitrator has determined that Shareholder has committed a breach by Shareholder of any covenant set forth in Section 3 of this Agreement, the Restricted Period will be extended by the period of the duration of such breach. (d) Acknowledgment. Shareholder acknowledges and agrees that the restrictions set forth in this Section 3 are reasonable in scope and essential to the preservation of Diablo’s business and proprietary properties and that enforcement of these restrictions will not cause Shareholder any hardship, and because of Shareholder’s background and experience, will not in any manner preclude Shareholder from becoming gainfully employed in such a manner and to such an extent as will provide a standard of living for Shareholder and the members of Shareholder’s family of at least the sort and fashion to which they have become accustomed. Each of Heritage, HBC and Shareholder acknowledges and agrees that the covenants and agreements contained in this Section 3 have been negotiated in good faith by each of them. Each of Heritage, HBC and Shareholder further acknowledges that (i) the goodwill associated with the existing vendors, customers, assets and employees of Diablo prior to the transactions contemplated herein is an integral component of the value of Diablo to Heritage and HBC and is reflected in the consideration to be received by Diablo shareholders, including the Shareholder pursuant to this Agreement, and (ii) the covenants and agreements contained in this Section 3 are necessary to preserve the value of Diablo’s business and proprietary properties for Heritage and HBC following the transaction. Each of Heritage, HBC and Shareholder acknowledges that the limitations of time, geography and scope of activity agreed to in Section 3 are reasonable because, among other things: (A) Heritage, HBC and Diablo are engaged in a highly competitive industry and have their operations in the Restricted Territory, (B) Shareholder had unique access to, and will continue to have access to, Confidential Information, including trade secrets, and know-how of Diablo and its business and proprietary properties, (C) Shareholder is receiving significant consideration in connection with the transactions contemplated by the Merger Agreement and this Agreement, and (D) this Agreement provides no more protection than is necessary to protect Heritage’s and HBC’s interest in the goodwill of Diablo and its business and proprietary properties, Confidential Information and Diablo, Heritage and HBC trade secrets. (e) No Disparagement. Shareholder will not, directly or indirectly, disparage Heritage and HBC, the business formerly conducted by Diablo, the business conducted by Heritage and HBC or any shareholder, director, officer, employee or agent of Heritage or HBC; (f) Future Employer. Shareholder will, during the Restrictive Period, within ten days after accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association that might reasonably involve the Business, advise Heritage of the identity of the new employer, client, partner or other Person with whom Shareholder has become associated. Following receipt of such notice, if Heritage in its reasonable judgment determines that Shareholder’s proposed association involves a Person engaged in the Business, Heritage may serve notice upon each such Person that such Shareholder is bound by this Agreement and furnish each such Person with a copy of this Agreement or relevant portions thereof. (g) Separate Agreement. The covenants of Shareholder contained in this Section 3 shall each be construed independently of any other provision in this Agreement, and the existence of any claim or cause of action of Shareholder against Heritage or HBC whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Heritage or HBC of such covenants. (h) Survival of Covenants. The covenants contained in this Section 3 shall survive the termination of this Agreement by either party hereto in accordance with the provisions of this Section 3. 4. Conflict. Shareholder represents and warrants to Heritage and HBC that Shareholder has not executed any written agreement with any other person or entity that would prohibit Shareholder from entering into this Agreement. Further, Shareholder represents and warrants to Heritage and HBC that the execution of this Agreement by Shareholder will not conflict with any obligations or duties which Shareholder may have to prior employers or pursuant to any other agreement. 5. Non-Disclosure of Agreement. Shareholder shall not disclose the terms and provisions of this Agreement or any other document executed in connection herewith except to Shareholder’s lawyers, accountants, tax advisors and spouse or by law to any Person; provided that Shareholder may disclose the non-competition and confidentiality covenants contained in Section 3 of this Agreement to a prospective employer or business partner with the prior written consent of Heritage. 6. Successors and Assigns. This Agreement will be binding upon Heritage and HBC and Shareholder and will inure to the benefit of Heritage and HBC and its affiliates, successors and assigns. 7. Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be discharged, in whole or in part, by a waiver or renunciation of the claim or right except in writing; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party, or of the right of the party giving such notice or demand to require the other party, to take further action without notice or demand as provided in this Agreement. 8. Governing Law. This Agreement will be governed by the laws applied by courts of California to contracts entered into within that state by parties residing within that state and having no connection to any other state. 9. Jurisdiction; Service of Process. Any proceeding arising out of or relating to this Agreement may be brought in the courts of the State of California, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of California, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this section may be served on any party as required under California law. 10. Severability. Whenever possible, each provision and term of this Agreement will be interpreted in a manner to be effective and valid, but if any provision or term of this Agreement is held to be prohibited or invalid, then such provision or term will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Agreement. If any of the covenants set forth in Section 3 of this Agreement are held to be unreasonable, arbitrary or against public policy, such covenants will be considered divisible with respect to scope, time and geographic area, and in such lesser scope, time and geographic area, will be effective, binding and enforceable against Shareholder to the fullest extent under California law. 11. Execution of Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 12. Section Headings, Construction. The headings of sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “Including” does not limit the preceding words or terms. 13. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt); (b) sent by facsimile (with written confirmation of receipt); or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers as a party may designate by notice to the other parties): Shareholder: James Mayer 2596 Danville Blvd. Alamo, CA 94501 with a copy to: Dylan W. Wiseman Littler Mendelson 2520 Venture Oaks Way, Suite 390 Sacramento, CA Facsimile: (916) 561-0828 Heritage and HBC: Heritage Commerce Corp 150 Almaden Blvd. San Jose, California 95113 Attn: Walter T. Kaczmek Facsimile: (408) 534-4940 With copy to: Buchalter Nemer 1000 Wilshire Boulevard Suite 1500 Los Angeles, CA 90017-2457 Attn: Mark A. Bonenfant, Esq. Facsimile: (213) 896-0400 14. Recitals. The recitals are incorporated herein and made a part of this Agreement. 15. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements and understandings between the parties with respect to the subject matter of this Agreement. This Agreement may not be amended except by a written agreement executed by the party to be charged with the amendment. [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Non-Compete, Non-Solicitation and Confidentiality Agreement on the date first set forth above. HERITAGE COMMERCE CORP By: /s/ Walter T. Kaczmarek Walter T. Kaczmarek Chief Executive Officer HERITAGE BANK OF COMMERCE By: /s/.Walter T. Kaczmarek Walter T. Kaczmarek President SHAREHOLDER /s/ James Mayer James Mayer

Entailment

554_nda-11

554_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 AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-16

554_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-15

554_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Entailment

554_nda-10

554_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Entailment

554_nda-2

554_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Entailment

554_nda-1

554_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-19

554_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Entailment

554_nda-12

554_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-20

554_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 AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-3

554_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Entailment

554_nda-18

554_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-7

554_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 AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Entailment

554_nda-17

554_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-8

554_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 AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-13

554_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Not mentioned

554_nda-5

554_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Entailment

554_nda-4

554_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 AGREEMENT This Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum Corporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA (“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA (“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties." WHEREAS The Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business relationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of each Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in order for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect the confidential and proprietary nature of such information, the Parties have entered into this Agreement. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS; 1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to the other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or representatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include, without limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived, developed, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other legal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components, computers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production, processes, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic alliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and prospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and suppliers and all documentation, materials and media provided by one Party to the other). 2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each Party agrees with respect to the Confidential Information received from the other Party, that it: (a) shall maintain such Confidential Information in the strictest confidence; (b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential Information must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential Information, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the third person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and (c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the prospective business relationship with the other Party in accordance with the introduction. Each Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than the measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be provided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom such disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee. 3. Excluded Information: This Agreement shall not apply to any information: (a) that has been or which becomes publicly known, through no wrongful act of either Party; (b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or administrative process or any governmental or court order. 4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party recognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or otherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that the other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential Information to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL INFORMATION. 5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the disclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-disclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In addition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties for unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether actual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing Party, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an immediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that may be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach, threatened breach or attempted breach. 6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written request or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been destroyed and is no longer useable in any format. 7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person who has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of a company (including the Parties), 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. 8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or advertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions that gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information provided pursuant to this Agreement, without first obtaining the prior written consent of the other Party. 9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations with respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement and/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party. 10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York, United States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles of conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter jurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York. 11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver of it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant. 12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original. 13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect. 14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any prior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless set forth in writing and signed by both Parties. 15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service, or by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be deemed given when the return receipt is received. 16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO MAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are identified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise attempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given or withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise engage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which approval may be given or withheld in TEUM’s sole discretion. [REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.] [SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date and year written above. Pareteum Corporation iPass: /s/ Denis McCarthy /s/ Darin Vickery Name: Denis McCarthy Name: Darin VIckery Title: SVP Corporate Developement Title: CFO Date: February 15, 2018 Date: December 20, 2017 Email: ............................................

Entailment

556_nda-11

556_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-16

556_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-15

556_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-10

556_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

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Q: Confidential Information shall only include technical information. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Contradiction

556_nda-1

556_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Contradiction

556_nda-19

556_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-12

556_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-20

556_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-3

556_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-18

556_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-7

556_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-17

556_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-8

556_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 (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-13

556_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-5

556_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

556_nda-4

556_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: Exhibit (e)(3) MUTUAL NON-DISCLOSURE AGREEMENT This MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and between IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and CATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman Road, Mountain View, California 94041. RECITALS: WHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the purpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit; WHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited purpose(s) set forth on Attachment A hereto; NOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential Information (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable consideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows: AGREEMENT: 1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct. 2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of such information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such information and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or after the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to Receiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party, is marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary nature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential Information. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of through or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications with Disclosing Party’s Representatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other materials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information and materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether patentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, operations, production techniques, purchasing information, employee names and information, employee expertise, processes, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables, development plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing policies. Notwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made available (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which concerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in person or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information furnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall be deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof. 3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than as result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s Confidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later published or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to Receiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to Receiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is approved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law, rule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party shall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to the confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. 4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall hold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any person or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential Information and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the confidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and will be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care as is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such degree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly permitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential Information of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party under this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized disclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become aware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither party shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of this Agreement or the identity of the parties hereto. 5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile any Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops and/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently developed or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts, techniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and agrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a third party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without obligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and without any use of or reference to the Confidential Information of Disclosing Party. 6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in that case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing Party, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such destruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together with any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request, all other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving Party shall not be required to destroy or return any electronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any such electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or destruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential Information. Any oral Confidential Information will continue to be subject to the terms of this Agreement. 7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors, employees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no such person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further agree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be entitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to the Transaction, subject to such limitations and restrictions as may be contained therein. 8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or obtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides Disclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature of Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving Party of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to Disclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek 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 by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party. 9. The parties are aware, and will advise their respective 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. 10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior written consent of the other party : (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 of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) 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 (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (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; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to the immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a potential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult will not be obligated to advise Ixia of any such inquiries or proposals. 11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment or employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for employment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in connection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who respond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not previously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements. 12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a possible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person); (b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless and until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor any of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise. 13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written consent of the other party, which consent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital stock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement to such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns. 14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential Information whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to Disclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in its sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason. 15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of either party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship between Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-vis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of the other party. 16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between any provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this Agreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an appropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in connection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’ fees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be amended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts, each of which shall be enforceable as an original, but which together shall constitute one and the same instrument. 17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one year after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon written notice to the other party. Notwithstanding termination of this Agreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto shall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such termination. 18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof. Each person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the person, firm or corporation listed above his or her name. IN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below. IXIA Catapult Communications Corporation By: /s/ Ronald W. Buckley By: /s/ Richard A. Karp Name: Ronald W. Buckley Name: Richard A. Karp Title: SVP & General Counsel Title: Chairman & CEO ATTACHMENT A Subject(s) of Confidential Information: Information and data regarding the business of each party, including but not limited to products, product development plans, customers, financial information and employees. Purpose(s) of Disclosure of Confidential Information: To enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving Party’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.

Entailment

557_nda-11

557_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-16

557_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-15

557_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Entailment

557_nda-10

557_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-2

557_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Contradiction

557_nda-1

557_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-19

557_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Entailment

557_nda-12

557_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-20

557_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-3

557_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-18

557_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Entailment

557_nda-7

557_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-17

557_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

557_nda-8

557_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 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Entailment

557_nda-13

557_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Entailment

557_nda-5

557_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Entailment

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557_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: Exhibit 10.2 NON-COMPETITION AND NONDISCLOSURE AGREEMENT This Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel Systems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the “Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”). WITNESSETH: WHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant to which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”); WHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement (the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase Agreement) in accordance with the terms and conditions hereof; and WHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral part of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may have in the Purchase Agreement: (a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted Business (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists, customer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books, records, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the assets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any other information heretofore or hereafter acquired by the Seller and deemed by it to be confidential. (b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, by or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or oral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. (c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including a government or political subdivision or an agency or instrumentality thereof. (d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers. (e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date hereof. 2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not: (a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership, management or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee, representative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own, manage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that directly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or own less than five percent (5%) of capital stock in a publicly held company; or (b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or solicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered into or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the Agreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or client, in each case, of the Seller at the time of the Agreement. 3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and confidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information. Seller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of Seller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or indirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its Affiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public or trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes available to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or advisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the Seller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or Guarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's expense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which must be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement. 4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor shall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person: (a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment, employees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; or (b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of its Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates; provided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is an employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date. 5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions contained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law. Therefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the Buyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor further acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or Guarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific performance of the obligations hereunder. 6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall be deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to render the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and shall be binding and inure to the benefit of the Buyer and its successors and assigns. 8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and Seller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto. 9. Governing Law; Venue. (a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts, without giving effect to principles of conflicts of laws. (b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each of Seller, Guarantor and Buyer: (i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex, Massachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding; (ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a convenient forum; (iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court located in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such court, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court; and (iv) agrees that service in any action may be made by giving notice in accordance with Section 10. 10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed properly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-mail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such party shall have specified in a written notice given to the other parties: if to the Seller or the Guarantor: Implant Sciences Corporation 107 Audubon Road, #5 Wakefield, MA 01880-1246 Attention: Facsimile: (781) 246-3561 Email: @implantsciences.com with a copy to: Ellenoff Grossman & Schole LLP 370 Lexington Avenue New York, NY 10017-6503 Attention: Barry I. Grossman Facsimile: (212) 370-7889 Email: [email protected] if to the Buyer: E vans Analytical Group LLC 810 Kifer Road Sunnyvale, CA 94086 Attention: Thomas B. Pfeil Facsimile: (408) 530-3899 E-mail: [email protected] 11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the day and year first above written. ACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC By: By: Name: Name: Title: Title: IMPLANT SCIENCES CORPORATION By: Name: Title:

Not mentioned

559_nda-11

559_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit 10.13 Non-Circumvention/Non-Disclosure Agreement This Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc., having is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having its principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”). 1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to Jag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with Jag. 2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and agents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts. Specifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions; or otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced Party. 3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements made and to be performed within the State, without regard to conflict of laws principles thereof. 4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs, officers, representatives, successors and assigns. 5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any provision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time. 6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any agreement with a third party or to inure any obligation or liabilities on behalf of the other party. 7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or precedent representation, agreements or conditions not specifically set forth herein. 8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent to the date hereof. 9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever; (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be effected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held, invalid illegal or unenforceable. IN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year first written above. Flow Capital Advisor, Inc. JAG Media Holding, Inc. By: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi Name: Albert Auer Name: Thomas J. Mazzarisi Title: President Title: Chairman & CEO

Not mentioned

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559_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit 10.13 Non-Circumvention/Non-Disclosure Agreement This Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc., having is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having its principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”). 1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to Jag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with Jag. 2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and agents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts. Specifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions; or otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced Party. 3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements made and to be performed within the State, without regard to conflict of laws principles thereof. 4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs, officers, representatives, successors and assigns. 5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any provision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time. 6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any agreement with a third party or to inure any obligation or liabilities on behalf of the other party. 7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or precedent representation, agreements or conditions not specifically set forth herein. 8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent to the date hereof. 9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever; (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be effected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held, invalid illegal or unenforceable. IN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year first written above. Flow Capital Advisor, Inc. JAG Media Holding, Inc. By: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi Name: Albert Auer Name: Thomas J. Mazzarisi Title: President Title: Chairman & CEO

Not mentioned

559_nda-15

559_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit 10.13 Non-Circumvention/Non-Disclosure Agreement This Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc., having is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having its principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”). 1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to Jag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with Jag. 2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and agents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts. Specifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions; or otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced Party. 3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements made and to be performed within the State, without regard to conflict of laws principles thereof. 4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs, officers, representatives, successors and assigns. 5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any provision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time. 6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any agreement with a third party or to inure any obligation or liabilities on behalf of the other party. 7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or precedent representation, agreements or conditions not specifically set forth herein. 8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent to the date hereof. 9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever; (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be effected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held, invalid illegal or unenforceable. IN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year first written above. Flow Capital Advisor, Inc. JAG Media Holding, Inc. By: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi Name: Albert Auer Name: Thomas J. Mazzarisi Title: President Title: Chairman & CEO

Not mentioned

559_nda-10

559_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit 10.13 Non-Circumvention/Non-Disclosure Agreement This Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc., having is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having its principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”). 1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to Jag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with Jag. 2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and agents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts. Specifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions; or otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced Party. 3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements made and to be performed within the State, without regard to conflict of laws principles thereof. 4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs, officers, representatives, successors and assigns. 5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any provision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time. 6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any agreement with a third party or to inure any obligation or liabilities on behalf of the other party. 7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or precedent representation, agreements or conditions not specifically set forth herein. 8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent to the date hereof. 9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever; (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be effected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held, invalid illegal or unenforceable. IN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year first written above. Flow Capital Advisor, Inc. JAG Media Holding, Inc. By: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi Name: Albert Auer Name: Thomas J. Mazzarisi Title: President Title: Chairman & CEO

Not mentioned

559_nda-2

559_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit 10.13 Non-Circumvention/Non-Disclosure Agreement This Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc., having is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having its principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”). 1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to Jag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with Jag. 2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and agents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts. Specifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions; or otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced Party. 3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements made and to be performed within the State, without regard to conflict of laws principles thereof. 4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs, officers, representatives, successors and assigns. 5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any provision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time. 6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any agreement with a third party or to inure any obligation or liabilities on behalf of the other party. 7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or precedent representation, agreements or conditions not specifically set forth herein. 8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent to the date hereof. 9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever; (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be effected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held, invalid illegal or unenforceable. IN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year first written above. Flow Capital Advisor, Inc. JAG Media Holding, Inc. By: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi Name: Albert Auer Name: Thomas J. Mazzarisi Title: President Title: Chairman & CEO

Not mentioned

559_nda-1

559_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit 10.13 Non-Circumvention/Non-Disclosure Agreement This Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc., having is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having its principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”). 1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to Jag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with Jag. 2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and agents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts. Specifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions; or otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced Party. 3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements made and to be performed within the State, without regard to conflict of laws principles thereof. 4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs, officers, representatives, successors and assigns. 5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any provision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time. 6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any agreement with a third party or to inure any obligation or liabilities on behalf of the other party. 7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or precedent representation, agreements or conditions not specifically set forth herein. 8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent to the date hereof. 9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever; (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be effected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held, invalid illegal or unenforceable. IN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year first written above. Flow Capital Advisor, Inc. JAG Media Holding, Inc. By: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi Name: Albert Auer Name: Thomas J. Mazzarisi Title: President Title: Chairman & CEO

Not mentioned

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Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit 10.13 Non-Circumvention/Non-Disclosure Agreement This Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc., having is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having its principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”). 1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to Jag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with Jag. 2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and agents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts. Specifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions; or otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced Party. 3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements made and to be performed within the State, without regard to conflict of laws principles thereof. 4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs, officers, representatives, successors and assigns. 5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any provision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time. 6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any agreement with a third party or to inure any obligation or liabilities on behalf of the other party. 7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or precedent representation, agreements or conditions not specifically set forth herein. 8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent to the date hereof. 9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever; (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be effected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held, invalid illegal or unenforceable. IN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year first written above. Flow Capital Advisor, Inc. JAG Media Holding, Inc. By: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi Name: Albert Auer Name: Thomas J. Mazzarisi Title: President Title: Chairman & CEO

Not mentioned

559_nda-12

559_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit 10.13 Non-Circumvention/Non-Disclosure Agreement This Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc., having is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having its principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”). 1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to Jag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with Jag. 2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and agents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts. Specifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions; or otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced Party. 3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements made and to be performed within the State, without regard to conflict of laws principles thereof. 4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs, officers, representatives, successors and assigns. 5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any provision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time. 6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The parties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any agreement with a third party or to inure any obligation or liabilities on behalf of the other party. 7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or precedent representation, agreements or conditions not specifically set forth herein. 8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent to the date hereof. 9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever; (i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be effected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held, invalid illegal or unenforceable. IN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year first written above. Flow Capital Advisor, Inc. JAG Media Holding, Inc. By: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi Name: Albert Auer Name: Thomas J. Mazzarisi Title: President Title: Chairman & CEO

Not mentioned