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urialon

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converted_contract_nli

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574_nda-2

574_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Contradiction

574_nda-1

574_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Contradiction

574_nda-19

574_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-12

574_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-20

574_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-3

574_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-18

574_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-7

574_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-17

574_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Not mentioned

574_nda-8

574_nda-8_0

Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-13

574_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-5

574_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

574_nda-4

574_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: Exhibit (d)(3) NON-DISCLOSURE AGREEMENT THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this 31st day of January, 2018, by and between ZEBRA TECHNOLOGIES CORPORATION, a Delaware corporation (“COMPANY”) and XPLORE TECHNOLOGIES CORP., a Delaware corporation (“XPLORE”). COMPANY and XPLORE sometimes are referred to herein as a “Party” and collectively as the “Parties.” WHEREAS, each of COMPANY and XPLORE possesses certain non-public, confidential and/or proprietary information relating to its businesses that it proposes to disclose to the other Party (the “COMPANY Information”, and the “XPLORE Information”, respectively, and collectively, the “Information”) for the purpose of evaluating a possible transaction (a “Transaction”) between COMPANY and XPLORE (the “Permitted Use”); NOW, THEREFORE, in consideration of the mutual promises contained herein, COMPANY and XPLORE hereby agree as follows: 1. Each of COMPANY and XPLORE agrees to hold the other Party’s Information in confidence in accordance with the provisions hereof. 2. Without the prior written consent of the other Party or except as otherwise provided herein, neither COMPANY nor XPLORE will: (i) distribute or disclose to any other person any of the other Party’s Information; (ii) permit any other person to have access to the other Party’s Information; (iii) use the other Party’s Information for any purpose other than the Permitted Use; (iv) (A) use the other Party’s Information in any way that would allow it to obtain a competitive advantage with respect to such Party or (B) reverse engineer such other Party’s Information; or (v) disclose to any other person (A) that discussions, investigations or negotiations are taking place concerning a possible transaction between the Parties, or (B) the terms, conditions, status or other facts regarding a possible transaction between the Parties, or (C) that a Party has received Information from the other Party. In addition, the Parties agree that any trade secrets of the other Party which are identified (whether orally or in writing) by the disclosing Party as trade secrets and disclosed to such Party pursuant to this Agreement shall continue to be held confidentially by such Party pursuant to the terms of this Agreement for the duration of the period such trade secrets remain trade secrets under applicable law, notwithstanding any expiration or termination of this Agreement. Notwithstanding the above, each of COMPANY and XPLORE agree that the other Party may disclose the COMPANY Information and the XPLORE Information, respectively, and portions thereof, as well as the information described in clause (iv) of the preceding sentence, to those of such other Party’s directors, officers, employees and, representatives (including financial advisors, lawyers and accountants) of such other Party’s advisors (collectively, “Representatives”) who need to know such Information for the Permitted Use. Each Party will inform its Representatives of the confidential nature of the other Party’s Information and will require its Representatives to abide by the terms of this Agreement and not to disclose the other Party’s Information to any other person. Each of COMPANY and XPLORE agrees to be responsible for any breach of this Agreement by its respective Representatives, and shall keep a true and correct record of all of such other Party’s Information such Party has provided to its Representatives, but shall not be required to keep records of such other Party’s Information that a Representative accesses via a dataroom. As used in this Agreement, the term “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual. 3. (a) In the event that COMPANY is required by law in any judicial or governmental proceeding or otherwise to disclose any XPLORE Information, COMPANY will give XPLORE prompt written notice of such request so that XPLORE may seek a protective order or appropriate remedy. If, in the absence of a protective order, COMPANY determines, upon the advice of counsel, that it is required to disclose such XPLORE Information, it may disclose such XPLORE Information only to the extent compelled to do so; provided, however, that COMPANY gives XPLORE written notice of the portion of XPLORE Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at XPLORE’s expense, to obtain assurances that confidential treatment will be accorded to such XPLORE Information. (b) In the event that XPLORE is required by law in any judicial or governmental proceeding or otherwise to disclose any COMPANY Information, XPLORE will give COMPANY prompt written notice of such request so that COMPANY may seek a protective order or appropriate remedy. If, in the absence of a protective order, XPLORE determines, upon the advice of counsel, that it is required to disclose such COMPANY Information, it may disclose such COMPANY Information only to the extent compelled to do so; provided, however, that XPLORE gives COMPANY written notice of the portion of COMPANY Information to be disclosed as far in advance of the disclosure as is practicable and uses its reasonable best efforts, at COMPANY’s expense, to obtain assurances that confidential treatment will be accorded to such COMPANY Information. 4. (a) All written COMPANY Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. COMPANY Information does not include information that XPLORE can clearly demonstrate falls within any of the following: (i) information that either is legally in XPLORE’s possession without restriction or publicly available to XPLORE prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to XPLORE without restriction and without any violation of this Agreement by XPLORE or its Representatives; (iii) information that becomes legally available to XPLORE on a non-confidential basis from any third party, the disclosure of which to XPLORE does not, to XPLORE’s knowledge, violate any contractual or legal obligation such third party has to COMPANY with respect to such information; (iv) information that is independently acquired or developed by XPLORE that XPLORE can demonstrate was acquired or developed without reference to COMPANY’s Information; or (v) information that is explicitly approved for release by written authorization of COMPANY. (b) All written XPLORE Information shall be information which is or would generally be considered to be confidential and/or proprietary information, and any information disclosed orally or visually shall be considered confidential Information if it is information which is or would generally be considered to be confidential and/or proprietary information, including if it is reduced to tangible form. XPLORE Information does not include information that COMPANY can clearly demonstrate falls within any of the following: (i) information that either is legally in COMPANY’s possession without restriction or publicly available to COMPANY prior to the disclosure of such information hereunder; (ii) information that, subsequent to its disclosure hereunder, becomes publicly available to COMPANY without restriction and without any violation of this Agreement by COMPANY or its Representatives; (iii) information that becomes legally available to COMPANY on a non-confidential basis from any third party, the disclosure of which to COMPANY does not, to COMPANY’s knowledge, violate any contractual or legal obligation such third party has to XPLORE with respect to such information; (iv) information that is independently acquired or developed by COMPANY that COMPANY can demonstrate was acquired or developed without reference to XPLORE’s Information; or (v) information that is explicitly approved for release by written authorization of XPLORE. (c) Without limiting the foregoing, COMPANY Information and XPLORE Information shall include (i) all information of the type described in subsection (a) or (b) that is in electronic format or provided or stored on electronic of magnetic media, film or any other sort of media, (ii) all analyses, compilations, data, studies, interpretations, memoranda, notes or other documents prepared by the other Party or its Representatives to the extent they contain any COMPANY Information or XPLORE Information, respectively, and (iii) any information of the type described in subsection (a) or (b) that is provided by such Party to the other Party prior to the date of this Agreement. (d) (I) Each Party is furnishing its Information hereunder in consideration of the other Party’s agreement for a period of eighteen (18) months that it and its affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will not (and will not assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the other Party’s Board of Directors (or similar governing body): (i) acquire or offer, seek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of all or substantially all of the assets or businesses of other Party or any securities, bank debt or trade debt issued by other Party, or any rights or options to acquire such ownership (including from a third party) (other than purchases of up to 5% of such securities in connection with such Party’s ordinary cash management practices and without reference to or knowledge of such other Party’s Information), (ii) seek or propose to influence or control the management or the policies of other Party or to obtain representation on the other Party’s Board of Directors, or solicit, or participate in the solicitation of, any proxies, consents or votes with respect to any securities of the other Party or with respect to any plan of reorganization filed by the other Party or any other person in connection with a bankruptcy or similar proceeding under state or federal law involving the other Party or any of its subsidiaries, (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing or (iv) make any public announcement with respect to the foregoing. Notwithstanding anything to the contrary in this Agreement (including the foregoing), nothing in this Section 4(d) shall prohibit either Party from submitting a confidential proposal to the other Party’s Board of Directors (or similar governing body) with respect to any action described in this Section 4(d)(I), provided that such proposal is not of a type that would require the other Party to make a public disclosure thereof. (II) If at any time during the eighteen month period referred to in the preceding paragraph (I) either Party enters into a definitive agreement providing for a Combination (as defined below) or becomes the subject of a tender or exchange offer which, if consummated, would constitute a Combination is commenced for securities of either Party, then upon the occurrence of any such event, the restrictions on the other Party set forth in the preceding paragraph (I) shall terminate and all other provisions of this Agreement shall continue in full force and effect in accordance with the terms hereof. A “Combination” shall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) acquires, directly or indirectly, securities representing fifty percent (50%) or more of the voting power of the outstanding securities of such Party or properties or all or substantially all the assets of such Party and its subsidiaries. 5. For a period of eighteen (18) months from the date hereof, neither COMPANY nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of XPLORE, (ii) management-level employees of XPLORE or its affiliates with whom COMPANY or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of XPLORE or its affiliates with whom COMPANY or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. For a period of eighteen (18) months from the date hereof, neither XPLORE nor its subsidiaries will, directly or indirectly, solicit to hire or hire any (i) officers of COMPANY, (ii) management-level employees of COMPANY or its affiliates with whom XPLORE or its Representatives have had direct contact in connection with the evaluation or negotiation of a possible transaction, or (iii) employees of COMPANY or its affiliates with whom XPLORE or its Representatives is first made aware of in connection with any due diligence conducted in connection with the evaluation of a possible transaction. Notwithstanding the foregoing, this Agreement will not preclude COMPANY, XPLORE or any of their respective subsidiaries from (A) hiring any employee of the type described in clause (iii) above of the other Party who responds to an advertisement or general solicitation (including through recruiting firms or similar engagements) that is not specifically targeted at such employee or at employees of such other Party generally or (B) making any such general solicitation. 6. For purposes of complying with the obligations set forth herein, each of COMPANY and XPLORE shall use efforts fully commensurate with those that it employs for the protection of its privileged and confidential Information. Each Party agrees that neither it nor any of its subsidiaries or affiliates has been granted any license, copyright or other similar right or privilege with respect to any of the Information or other information provided by or on behalf of the other Party. Each Party hereby acknowledges and confirms that all existing and future intellectual property rights relating to the other Party’s Information are the exclusive property of such Party. Each Party agrees that it will not apply for or obtain any intellectual property protection in respect of the other Party’s Information. All intellectual property rights relating to any drawings, documents and work carried out by any Party (whether past, present or future) using the other Party’s Information will belong to and will vest in the other Party. Each Party agrees that it will do all such things and execute all documents necessary to enable the other Party to obtain, defend or enforce its rights in such drawings, documents and work. 7. (a) COMPANY acknowledges that XPLORE currently, or in the future, may develop information internally, or receive information from third parties that may be similar to COMPANY’s Information. Therefore, this Agreement is not to be understood or construed as a promise by XPLORE that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in COMPANY Information. (b) XPLORE acknowledges that COMPANY currently, or in the future, may develop information internally, or receive information from third parties that may be similar to XPLORE’S Information. Therefore, this Agreement is not to be understood or construed as a promise by COMPANY that it will not develop products (or have products developed for it) that, without violating this Agreement, compete with the products or systems contemplated or described in XPLORE Information. 8. Neither COMPANY nor XPLORE makes any representation or warranty, express or implied, as to the accuracy or completeness of its Information. Neither Party, nor any of its respective affiliates, officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability to the other Party or any other person resulting from such other Party’s or other person’s use of the Information. To the extent that any Information includes materials subject to the attorney-client privilege, the applicable Party is not waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges or similar protections and privileges as a result of disclosing any Information hereunder. 9. It is understood that this Agreement does not obligate COMPANY or XPLORE to enter into any further agreement. Unless and until a definitive agreement between COMPANY and XPLORE with respect to a transaction has been executed and delivered, neither COMPANY nor XPLORE will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this Agreement or any written or oral expression with respect to any transaction by any of the COMPANY’s or XPLORE’s Representatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each Party understands and agrees that (i) the other Party (a) shall be free to conduct the process for a Transaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any other Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any transaction, in each case, at any time and without notice to you or any other Person) and (b) shall be free at its sole discretion to at any time accept or reject any proposal relating to the other Party for any reason without notice and (ii) it shall have no claim against the other Party or any of its officers, directors, employees, shareholders, partners, members, affiliates, accountants, attorneys, financial advisors, consultants or other agents or representatives in connection with any of the foregoing matters. 10. (a) COMPANY agrees that XPLORE Information is and shall at all times remain the property of XPLORE. COMPANY acknowledges that the XPLORE Information is confidential and material to the interests, business and affairs of XPLORE and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of XPLORE. No use of such XPLORE Information is permitted except as otherwise provided herein and no grant under any of XPLORE’s intellectual property rights is hereby given or intended, including any license (implied or otherwise). (b) XPLORE agrees that COMPANY Information is and shall at all times remain the property of COMPANY. XPLORE acknowledges that the COMPANY Information is confidential and material to the interests, business and affairs of COMPANY and that the disclosure thereof (other than as permitted under this Agreement) would be detrimental to the interests, business and affairs of COMPANY. No use of such COMPANY Information is permitted except as otherwise provided herein and no grant under any of COMPANY intellectual property rights is hereby given or intended, including any license (implied or otherwise). 11. Each of the Parties agrees that the Information shall not be exported directly or indirectly to any restricted or prohibited country without the prior written consent of the Bureau of Industry & Security of the U.S. Department of Commerce, where such consent is required to be obtained. Each Party acknowledges the other Party’s potential obligations under the federal securities laws, but you will first consult with the such other Party regarding the timing and content of such disclosure and otherwise comply with the terms and provisions of the foregoing. 12. (a) Upon the request of COMPANY, XPLORE will return or destroy (at XPLORE’S option) all COMPANY Information and any notes, correspondence, analyses, documents or other records containing COMPANY Information, including all copies thereof, then in the possession of XPLORE or its Representatives. Such return, however, does not abrogate the continuing obligations of XPLORE under this Agreement. Notwithstanding the foregoing, one copy of the COMPANY Information and the notes, correspondence, analyses, documents or other records containing COMPANY Information may be retained by XPLORE’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and XPLORE will not be required to destroy electronic back-up versions of the COMPANY Information to the extent such destruction is not reasonably practical; provided that any COMPANY Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of XPLORE, and all retained information shall remain subject to the terms and conditions of this Agreement. (b) Upon the request of XPLORE, COMPANY will return or destroy (at COMPANY’s option) all XPLORE Information and any notes, correspondence, analyses, documents or other records containing XPLORE Information, including all copies thereof, then in the possession of COMPANY or its Representatives. Such return, however, does not abrogate the continuing obligations of COMPANY under this Agreement. Notwithstanding the foregoing, one copy of the XPLORE Information and the notes, correspondence, analyses, documents or other records containing XPLORE Information may be retained by COMPANY’s in-house or external attorneys to prevent possible future misunderstandings regarding the scope of the disclosure and COMPANY will not be required to destroy electronic back-up versions of the XPLORE Information to the extent such destruction is not reasonably practical; provided that any XPLORE Information retained on routine computer system back-up tapes, disks or other back-up storage devices shall not be used, disclosed or otherwise recovered from such back-up devices unless required for regulatory purposes or legal process. Any destruction will be certified by an officer of COMPANY, and all retained information shall remain subject to the terms and conditions of this Agreement. 13. The obligation of each of COMPANY and XPLORE to comply with the provisions contained herein shall continue for a period of four(4) years commencing upon the date hereof. 14. The Parties understand and agree that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Each Party understands and agrees that if it or any of its Representatives breaches or threatens to breach any of the provisions of this Agreement (i) money damages would be an insufficient remedy, (ii) that the other Party would be irreparably damaged and (iii) that without prejudice to the rights and remedies otherwise available to the other Party, the other Party is entitled to seek equitable relief by way of injunction, specific performance or otherwise. 15. This Agreement will be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflict of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the federal courts of the United States of America located in the State of Delaware over any dispute, claim or matter arising out of or relating to the Agreement. Each Party hereby irrevocably agrees that all claims in respect of such dispute or proceeding shall be heard and determined in such courts (and the courts hearing appeals from such courts). The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum in connection therewith. Each Party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement. 16. Any assignment of this Agreement by any Party without the other Party’s prior written consent is void. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement will remain in full force and effect to the fullest extent permitted by applicable law. This Agreement contains the entire agreement between the parties hereto concerning the subject matter herein. No modification of this Agreement or waiver of the terms and conditions hereof will be binding upon any Party hereto unless agreed in writing by the other Party. Each Party acknowledges that it is aware that the other Party is a publicly traded company subject to laws concerning trading by any Person who has material, non-public information about a public company that prohibit such Person from purchasing or selling securities of such a company or from communicating such information to any other Person. This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or email shall be effective to the fullest extent permitted by applicable law. [Signature Page Follows] IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date first written above. ZEBRA TECHNOLOGIES CORPORATION XPLORE TECHNOLOGIES CORP. By: /s/ Michael Cho By: /s/ Tom Wilkinson Name: Michael Cho Name: Tom Wilkinson Title: Sr. Vice President, Corp. Devel. Title: Chief Executive Officer Date: January 31, 2018 Date: January 31, 2018

Entailment

576_nda-11

576_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Not mentioned

576_nda-16

576_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-15

576_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-10

576_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-2

576_nda-2_0

Q: Confidential Information shall only include technical information. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Contradiction

576_nda-1

576_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Not mentioned

576_nda-19

576_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-12

576_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-20

576_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-3

576_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-18

576_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Not mentioned

576_nda-7

576_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-17

576_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-8

576_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 NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Not mentioned

576_nda-13

576_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-5

576_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

576_nda-4

576_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: MUTUAL NON-DISCLOSURE AGREEMENT THIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera Therapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301 (“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd., Hazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts: A. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”). B. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the other party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature. C. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order to enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of the information of the other party in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows: 1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and confidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical study plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes, techniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of customers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or obtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and confidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking such measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access to the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to such information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants contained herein. 2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of the other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary for the discussion and exploration of the Purpose. 3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY each agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like containing the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the Purpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such documents, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA and COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure compliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement. 4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are owned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the parties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under any patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the conduct of the Purpose. 5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary Information disclosed hereunder which: a. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party; b. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary Information; c. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public; d. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third party introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or e. is required by law or made pursuant to an order from a court or government agency. In claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing that any such portion of the Proprietary Information is subject to such exception. 6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of the Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof. 7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the existence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties. 8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable harm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law or in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other securities, to seek equitable relief, including injunctive relief and specific performance. 9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision hereof. 10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written consent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in connection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such party may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its successors and permitted assigns, subsidiaries and affiliates. 11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New York, without regard to its conflict of laws provisions within. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and supersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of this Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This Agreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end discussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential information to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an original and all of which shall together be deemed to constitute one Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. OCERA THERAPEUTICS, INC. MALLINCKRODT LLC /s/ Linda Grais /s/ Joshua Schafer Signature Signature Linda Grais Joshua Schafer Printed Name Printed Name CEO Vice President, BD&L Title Title

Entailment

577_nda-11

577_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Not mentioned

577_nda-16

577_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Not mentioned

577_nda-15

577_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

577_nda-10

577_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

577_nda-2

577_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Contradiction

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Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Not mentioned

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Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

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Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

577_nda-20

577_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

577_nda-3

577_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

577_nda-18

577_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Not mentioned

577_nda-7

577_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

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Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

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: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

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Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

577_nda-5

577_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit 10 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

577_nda-4

577_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 CONFIDENTIAL Kenneth Hao Managing Director Silver Lake Management Company, L.L.C. 2725 Sand Hill Road, Suite 150 Menlo Park, CA 94025 Dear Mr. Hao: NON-DISCLOSURE AGREEMENT In connection with your consideration of possible transaction with SERENA Software, Inc. (the “Company”), you have requested financial and other information concerning the business and affairs of the Company. As a condition to the Company’s furnishing to you and your representatives financial and other information which has not theretofore been made available to the public, you and your representatives agree to treat all such non-public information furnished to you and your representatives in writing or orally by the Company or its representatives on and after the date of this agreement (herein collectively referred to as the “Confidential Evaluation Material”), as follows: (1) You and your representatives recognize and acknowledge the competitive value and confidential nature of the Confidential Evaluation Material and the damage that could result to the Company if information contained therein is disclosed to any third party. You and your representatives also recognize and acknowledge that the Confidential Evaluation Material is being provided to you and your representatives in reliance upon your and their acceptance of the terms of this agreement. (2) You and your representatives agree that the Confidential Evaluation Material will be used solely for the purpose of evaluating the proposed transaction. You also agree that you and your officers, employees, financing sources, consultants, Affiliates, agents and advisors, herein collectively referred to as “your representatives,” will not disclose or permit the disclosure of any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives to any third party or otherwise use or permit the use of the Confidential Evaluation Material in any way detrimental to the Company, except as required by court order or legal process, without the prior written consent of the Company, provided, however, that any such information may be disclosed to such of your representatives who need to know such information for the purpose of evaluating the proposed transaction and who are advised of this agreement and agree to keep such information confidential and to be bound by this agreement to the same extent as if they were parties hereto, it being understood that you shall be responsible for any breach of this agreement by your representatives; provided, however, that you shall not be responsible for any failure to comply with the terms of this agreement by any of your representatives that (i) is not one of your officers, employees or Affiliates and (ii) has signed an undertaking in favor of the Company and you to the effect of Annex A hereto. (3) In the event you or your representatives receive a request to disclose Confidential Evaluation Material pursuant to any court order or legal process, you or your representatives will give the Company prompt written notice thereof so that the Company may seek an appropriate protective order. You and your representatives agree to cooperate (at the Company’s expense) as reasonably requested by the Company in its efforts to maintain the confidentiality of such Confidential Evaluation Material. If you or your representatives are ultimately required to disclose such Confidential Evaluation Material, you or your representatives shall disclose only so much thereof as necessary to comply with such court order or legal process. (4) Except as may be required by court order or legal process, neither party hereto nor any of its representatives will disclose to any other person or entity: (a) the fact that information regarding the Company is being or has been furnished to you; (b) the fact that discussions or negotiations regarding any transaction are or have been taking place between representatives of you and the Company, or any information regarding the status or terms of any such discussions or negotiations between the Company and you or the identity of the parties thereto; (c) the fact that the Company is or has been considering the possibility of entering into a transaction with you of the nature discussed by you and the Company. In addition, neither you nor your representatives will disclose to any other person or entity that the Company has been considering the possibility of entering into a transaction of the nature discussed by you and the Company, with any third party. Either party hereto shall be permitted to disclose any fact or information covered by this paragraph 4 to the same extent, and under the same conditions, as you are permitted to disclose Confidential Evaluation Material pursuant to paragraphs 2 and 3 hereof. Nothing in this paragraph (4) shall be construed to prevent or limit the Company’s or its representatives’ right to disclose, discuss, negotiate or enter into a transaction of the nature discussed by you and the Company with any other person or entity or provide information regarding the Company to any other person or entity. (5) In the event that the transaction contemplated by this agreement is not consummated, neither you nor any of your representatives shall, without prior written consent of the Company, use any of the Confidential Evaluation Material now or hereafter received or obtained from the Company or its representatives for any purposes other than your evaluation of such transaction. (6) At any time upon the Company’s request, all Confidential Evaluation Material (and all copies, summaries, and notes of the contents or parts thereof) shall be returned or, if you so choose, destroyed and not retained by you or your representatives in any form or for any reason and written certification to that effect will be sent by you to the Company within 30 days of such request; provided, however, that you and your representatives shall not be obligated to return or destroy the Confidential Evaluation Material if, and to the extent, otherwise required by any applicable law, regulation, policy or procedures relating to the retention, back-up storage or automatic archiving of files and data. Any Confidential Evaluation Material that is retained by you or your representatives for the sole purpose of compliance with such law, regulation, policy or procedures shall not be used for any purpose other than to evidence compliance therewith and such retained material and information shall continue to be subject to the confidentiality obligations set forth in this letter agreement, which obligations shall survive any termination hereof. All the Confidential Evaluation Material will be and remains the property of the Company. (7) The following information provided by the Company shall not be deemed Confidential Evaluation Material: (A) any information that is or becomes generally available to the public other than as a result of an improper disclosure by you or your representatives; (B) any information which becomes legally available to you from a source other than the Company that is not, to your knowledge after reasonable inquiry, bound by a confidentiality obligation to the Company; (C) any information that is already in your possession as of the date hereof or (D) any information that is independently developed by you without use of or reference to the Confidential Evaluation Material. (8) Neither this letter agreement nor any action taken in connection with this letter agreement will give rise to any obligation on the part of either you or the Company (a) to engage in any discussions or negotiations with the other party or with any of the other party’s representatives, or (b) to pursue or enter into any transaction of any nature with the other party. The parties acknowledge and agree that neither shall have any legally binding commitment for a transaction unless set forth in a separate written agreement that is executed and delivered by both of them. (9) Nothing contained in this letter agreement nor the conveying of Confidential Evaluation Material hereunder shall be construed as granting or conferring any rights by license or otherwise in any trademark, patent, copyright, trade secret, technological information or other information, or other intellectual property. (10) You agree that for a period of one year from the date of this letter agreement, neither you nor your representatives will, without the prior written consent of the Company, directly or indirectly: (A) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any securities or direct or indirect rights to acquire any securities of the Company or any subsidiary thereof, or of any successor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling person; provided, however, that nothing herein shall prohibit the purchase of securities in the ordinary course of any of your representatives’ business that does not in any event result in aggregate ownership by such representative of more than 2% of the outstanding amount of any class of securities of the Company; (B) seek or propose to influence or control the management or policies of the Company, make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote any voting securities of the Company or any subsidiary thereof, or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company or any subsidiary thereof; (C) make any public announcement with respect to, or submit a proposal for or offer of (with or without conditions), any merger, recapitalization, reorganization, business combination or other extraordinary transaction involving the Company or any subsidiary thereof or any of their securities or assets; or (D) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way engage in discussions relating to the formation of, or participate in, a “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing. (11) The provisions of this agreement relating to confidentiality shall terminate two years from the date hereof. The invalidity or enforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. (12) This agreement shall be governed by the laws of the State of California applicable to agreements made and to be performed within. (13) “You” used alone shall mean Silver Lake Management Company, L.L.C. and its officers, employees and Affiliates. (14) An “Affiliate” of, or person “affiliated” with, a specified person shall mean a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified and has received the Confidential Evaluation Material from such specified person. Please confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this letter. SERENA Software, Inc. By /S/ MARK WOODWARD Name: Mark Woodward Title: CEO Accepted and Agreed as of the date first written above: Silver Lake Management Company, L.L.C. By /S/ KENNETH HAO Name: Kenneth Hao Title: Managing Director

Entailment

578_nda-11

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Not mentioned

578_nda-16

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-15

578_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-10

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-2

578_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Contradiction

578_nda-1

578_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Not mentioned

578_nda-19

578_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-12

578_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-20

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-3

578_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Not mentioned

578_nda-18

578_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (d)(2) NON-DISCLOSURE AGREEMENT This AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

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578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-17

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Not mentioned

578_nda-8

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-13

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-5

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

578_nda-4

578_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 AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place of business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the potential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain Confidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party (the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing Party has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary interest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans, discoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business, marketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product information, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other communications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses, compilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect any of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable description) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations, forecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection with their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any information referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-confidential. 2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the Disclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the Receiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential Information on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without limitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and accountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the Transaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in this Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential Information exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that discussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms, conditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status thereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as “Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a party may have against the other party’s Representatives with respect to such breach). 3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party to be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or its Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently developed by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the Confidential Information. 4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one or more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI Contacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this Agreement (the “Borderfree Contacts”). 5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event the Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing Party’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the extent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained, unless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by counsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by counsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s expense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of Confidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this Agreement. 6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed with the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of the Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in the Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses; provided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party in the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup tapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided further that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this Agreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The Receiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized Representatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will continue to be bound by its and their obligations under this Agreement. 7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for the use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a written agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been executed, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind whatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or oral expression with respect to the Transaction, or otherwise. 8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be competitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the acknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall prevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used only for the purpose of this Transaction and in no event shall be provided to any of such companies. 9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any United States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or partnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks, logos or designs for any purpose, without the other party’s prior written permission. 10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement for the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the “Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any liability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions therefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it will be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below), subject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with respect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction, subject only to such conditions to closing as may be negotiated between the parties, and 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. 11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly or indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the Disclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation of the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the Receiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries or their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who responds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of this Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee of the Disclosing Party or its subsidiaries. 12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so, neither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any securities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a) (ii) and (b)(i) involving a majority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange Commission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person as a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative form) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business Combination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement by the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination. Notwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential, non-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or involving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof. 13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the Receiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. 14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight carrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the addresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree shall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General Counsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate Development & Strategy with a copy to: Attention: Office of the General Counsel. 15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with respect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may inadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will immediately destroy or return any such Confidential Information and other materials. 16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the parties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure provision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this Agreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning the subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved in writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this Agreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. 17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly executed by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their successors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures and in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement binding on both parties. 18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between residents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in that State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with respect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine or to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with process at its address set forth on the first page hereof. 19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this Agreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the Disclosing Party. 20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that it is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United States and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information and such laws prohibit 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. The Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction. 21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right, power or privilege. 22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any obligation to the other party under this Agreement. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC. By: /s/ Jeff Brennan (sign) By: /s/ Michael DeSimone (sign) Name: Jeff Brennan Name: Michael DeSimone Title: VP, Corporate Development & Strategy Title: Chief Executive Officer [Signature Page to Non-Disclosure Agreement]

Entailment

579_nda-11

579_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Not mentioned

579_nda-16

579_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

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Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

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Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

579_nda-2

579_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Contradiction

579_nda-1

579_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Not mentioned

579_nda-19

579_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

579_nda-12

579_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

579_nda-20

579_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Contradiction

579_nda-3

579_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Not mentioned

579_nda-18

579_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

579_nda-7

579_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

579_nda-17

579_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Not mentioned

579_nda-8

579_nda-8_0

Q: Receiving Party shall notify Disclosing Party in case Receiving Party is required by law, regulation or judicial process to disclose any Confidential Information. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

579_nda-13

579_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

579_nda-5

579_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

579_nda-4

579_nda-4_0

Q: Receiving Party shall not use any Confidential Information for any purpose other than the purposes stated in Agreement. Text: Exhibit (d)(3) MUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) by and between Convio, Inc., a Delaware corporation (“Convio”), and Blackbaud, a Delaware corporation (“Potential Buyer” and Convio and Potential Buyer, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto. 1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties and/or their respective subsidiaries (each such Party being hereinafter referred to, collectively with its subsidiaries, as a “Company”), each Company (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Company (in its capacity as a recipient of information hereunder, a “Recipient”) certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth. 2. Definitions. (a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its Representatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared by the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, (iii) is or becomes available to the Recipient on a non-confidential basis from a source other than the Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information or (iv) is or has been independently developed by an employee, agent or contractor of the Recipient without use or reference to any information furnished by Provider or its Representatives. (b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable. (c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity. 3. Use of Evaluation Material. Each Recipient shall, and it shall cause its Representatives to, use the Evaluation Material solely for the purpose of evaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of helping the Recipient evaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s Representatives. This Agreement does not grant a Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. 4. Non-Disclosure of Discussions. Subject to Section 5, Potential Buyer agrees that, without the prior written consent of Convio, Potential Buyer will not, and will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Companies, (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction, or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof). Potential Buyer acknowledges that Convio is free to disclose (i) that Evaluation Material has been exchanged between the Companies or (ii) that discussions or negotiations are taking place between the Companies concerning a Possible Transaction; provided that Convio does not, and causes its Representatives not to, disclose to any other Person the identity of Potential Buyer or any of the terms, conditions or other facts with respect to a Possible Transaction except to the extent permitted by Section 5 or as otherwise believed reasonably required or necessary to comply with the fiduciary duties or other obligations applicable to Convio and its directors, officers and employees or with other applicable law. 5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall provide the Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that the Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer other censure or penalty, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation Material or any such facts which the Recipient or its Representatives is legally required to disclose, provided that the Recipient and/or its Representatives cooperate with the Provider to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the material. 6. Return or Destruction of Evaluation Material. If either Company decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the other Company of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, and will cause its Representatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be retained. The Recipient shall provide to the Provider a certificate of compliance with the previous sentence signed by an executive officer of the Recipient. Notwithstanding the return or destruction of the Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material. 7. No Solicitation/Employment. Neither Recipient will, within twelve (12) months from the date of this Agreement, directly or indirectly solicit the employment or consulting services of or employ or engage as a consultant any of the officers of Provider or any other employees or contractors of the Provider engaged in evaluating the Potential Transaction or information about whom has been provided to Recipient in connection with evaluating the Potential Transaction, so long as they are employed by the Provider and for six months after they cease to be employed by Provider. A Recipient is not prohibited from soliciting by means of a general advertisement not directed at (i) any particular individual or (ii) the employees of the Provider generally. 8. Standstill. Each Company agrees that, for a period of fourteen (14) months after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the other Company, neither it nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or Representatives (acting in any capacity other than as an advisor in any of the following cases) will in any manner, directly or indirectly: (a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other Company; (c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction involving the other Company or its securities or assets; (d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the other Company; (e) take any action which might force the other Company to make a public announcement regarding any of the types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Company also agrees during the Standstill Period not to request the other Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 8 (including this sentence). Notwithstanding the foregoing, the restrictions set forth in this paragraph 8 shall terminate with respect to a Company (1) in the event of an Acquisition Transaction (as defined below) with respect to the other Company (the “Acquired Company”) or the commencement by a party other than the Company or its affiliates of a tender or exchange offer for an Acquisition Transaction with respect to the Acquired Company, and either (x) not rejected by the Acquired Company within ten (10) business days thereof or (y) accepted by the Acquired Company, or (2) if the Acquired Company shall have entered into a definitive agreement providing for an Acquisition Transaction. “Acquisition Transaction” means any direct or indirect acquisition or purchase (whether through the purchase of shares, merger, consolidation or otherwise) of (i) all or substantially all of the assets of a Company and its subsidiaries on a consolidated basis or (ii) 50% or more of the voting securities of, or equity interests in, a Company or any of its subsidiaries by any person or group other than such Company or its affiliates. 9. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that the Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the Companies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by a Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. 10. Compliance with Securities Laws. Each Recipient agrees that it and its Representatives will not to use any Evaluation Material of the Provider in violation of applicable securities laws. 11. Not a Transaction Agreement. Each Company understands and agrees that no contract or agreement providing for a Possible Transaction exists between the Companies unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Company hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until both Companies shall have entered into a final definitive agreement for a Possible Transaction. Each Company also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Neither Company is under any obligation to accept any proposal regarding a Possible Transaction and either Company may terminate discussions and negotiations with the other Company at any time. Potential Buyer further agrees that (i) Convio shall be free to conduct any process for any Possible Transaction as Convio in its sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a definitive agreement therewith without prior notice to the Potential Buyer or any other Person), (ii) any procedures relating to such process or Possible Transaction may be changed at any time without notice to the Potential Buyer or any other Person, and (iii) unless a final definitive agreement relating to a Possible Transaction is entered into, the Potential Buyer shall not, by virtue of this Agreement, have any claims whatsoever against the other Company, the Representatives of the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents arising out of or relating to any Possible Transaction except with respect to explicit obligations hereunder. 12. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither the Provider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting from the use of the Evaluation Material furnished to such Recipient or its Representatives or any errors therein or omissions therefrom. As to the information delivered to the Recipient, each Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this Agreement shall be construed as obligating a Company to provide, or to continue to provide, any information to any Person. 13. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder. 14. Remedies. Each Company understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by either Company or any of its Representatives and that the Company against which such breach is committed shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach by either Company of this Agreement, but shall be in addition to all other remedies available at law or equity to the Company against which such breach is committed. 15. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Company or its Representatives has breached this Agreement, then the Company which is, or the Company whose Representatives are, determined to have so breached shall be liable and pay to the other Company the reasonable legal fees and costs incurred by the other Company in connection with such litigation, including any appeal therefrom. 16. Governing Law. This Agreement is for the benefit of each Company and shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the federal courts of the United States of America located in State of Delaware for any actions, suits or proceedings arising out of or relating to this Agreement and any Possible Transaction. Each Company agrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s address set forth below shall be effective service of process for any action, suit or proceeding relating thereto brought against such Company in any such court. Each Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the Possible Transaction in any such court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. 17. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the Companies intend and hereby request that the court or other authority making that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all purposes of this Agreement. 18. Construction. The Companies have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Companies and no presumption or burden of proof shall arise favoring or disfavoring either Company by virtue of the authorship at any of the provisions of this Agreement. 19. Term. This Agreement shall terminate five years after the date of this Agreement (except with respect to trade secrets for which the term shall be perpetual). 20. Entire Agreement. This Agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements, understandings, arrangements and discussions between the Companies regarding such subject matter. 21. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together hall be deemed to constitute a single instrument. 22. Information Providers. Each Recipient may only request Evaluation Material from the other Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, outside financial advisor or law firm (in each case only if advising the Company with respect to the Possible Transaction) or other individual or entity designated in writing by any such officer of the Company as an “Approved Information Provider.” A Recipient may not, and shall cause its Representatives not to, contact any other employee of the Provider. IN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of the date written below. CONVIO, INC. BLACKBAUD, INC. By: /s/ Gene Austin By: /s/ Jon W. Olson Name: Gene Austin Name: Jon W. Olson Title: CEO Title: Vice President & General Counsel Date: November 7, 2011 Date: November 7, 2011

Entailment

580_nda-11

580_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Not mentioned

580_nda-16

580_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Not mentioned

580_nda-15

580_nda-15_0

Q: Agreement shall not grant Receiving Party any right to Confidential Information. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Entailment

580_nda-10

580_nda-10_0

Q: Receiving Party shall not disclose the fact that Agreement was agreed or negotiated. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Not mentioned

580_nda-2

580_nda-2_0

Q: Confidential Information shall only include technical information. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Contradiction

580_nda-1

580_nda-1_0

Q: All Confidential Information shall be expressly identified by the Disclosing Party. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Contradiction

580_nda-19

580_nda-19_0

Q: Some obligations of Agreement may survive termination of Agreement. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Not mentioned

580_nda-12

580_nda-12_0

Q: Receiving Party may independently develop information similar to Confidential Information. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Entailment

580_nda-20

580_nda-20_0

Q: Receiving Party may retain some Confidential Information even after the return or destruction of Confidential Information. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Contradiction

580_nda-3

580_nda-3_0

Q: Confidential Information may include verbally conveyed information. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Entailment

580_nda-18

580_nda-18_0

Q: Receiving Party shall not solicit some of Disclosing Party's representatives. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Not mentioned

580_nda-7

580_nda-7_0

Q: Receiving Party may share some Confidential Information with some third-parties (including consultants, agents and professional advisors). Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Entailment

580_nda-17

580_nda-17_0

Q: Receiving Party may create a copy of some Confidential Information in some circumstances. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Not mentioned

580_nda-8

580_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)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Entailment

580_nda-13

580_nda-13_0

Q: Receiving Party may acquire information similar to Confidential Information from a third party. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Entailment

580_nda-5

580_nda-5_0

Q: Receiving Party may share some Confidential Information with some of Receiving Party's employees. Text: Exhibit (d)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Entailment

580_nda-4

580_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)(5) NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July, 2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus Biochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141 (hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as the “Business Purpose”); and WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and WHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean: (i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format, whether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including, without limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER, which relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology CarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be thereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter acquire. (ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without limitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or methods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is (a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant circumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a proprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial, customer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel. (iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of first disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such Information. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall apply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the Parties’ parent, subsidiary and related companies. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information; (c) not to disclose such Confidential Information to third parties; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the Disclosing Party. 4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members, managers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who have bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such representatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party. 5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to Confidential Information furnished by the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or (f) is disclosed with the prior, written consent of the Disclosing Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party agrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in breach of this Agreement simply by acting in accordance with its terms and conditions. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows: If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Randal J. Kirk Fax: (540) 633-7979 With a copy to: New River Pharmaceuticals Inc. The Governor Tyler 1902 Downey Street Radford, VA 24141 USA Attention: Marcus E. Smith, Esq. Fax No.: (540) 633-7971 If to SHIRE: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Jeff Martini Fax: (859) 282-2103 With a copy to: Shire US Inc. 7900 Tanners Gate Drive Florence, KY 41042 USA Attention: Kevin T. Anderson, Esq. Fax: (859)282-1794 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District of the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or hereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent permitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court. Each party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by applicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process (whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its property or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses. 17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the right to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. New River Pharmaceuticals Inc. Shire US Inc. By: -s- Randal J. Kirk By: -s- Jeffrey W. Martini Randal J. Kirk Name: Jeffrey W. Martini Chairman, President and CEO Title: Director of Finance Officer Shire US Inc.

Entailment

581_nda-11

581_nda-11_0

Q: Receiving Party shall not reverse engineer any objects which embody Disclosing Party's Confidential Information. Text: Exhibit (d)(6) NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”); WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose; WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW CONFIDENTIAL RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information. (d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care); (c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party. 4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities. (a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement. (b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto. (c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto. (d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto. (e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K. 5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or (f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows. If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1881 Grove Ave Radford, VA 24141 Attention: Legal Department Fax No.: (540) 633-7939 If to SHIRE: Shire Pharmaceuticals, Inc. 725 Chesterbrook Boulevard Wayne, PA 19087 Attention: Legal Department Fax No.: 484-595-8163 If to L.E.K.: L.E.K. Consulting LLC 28 State Street 16th Floor Boston, MA 02109 Attention: Mike Clabault Fax No.: 617-951-9392 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). 17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. 20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement. 21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party. 22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party. 23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC By: -s- Randal J. Kirk By: -s- Jon Piper Name: Randal J. Kirk Name: Jon Piper Title: President & CEO Title: Vice President SHIRE PHARMACEUTICALS, INC By: -s- XXXXX Name: Scott Applebaum Title: Secretary

Not mentioned

581_nda-16

581_nda-16_0

Q: Receiving Party shall destroy or return some Confidential Information upon the termination of Agreement. Text: Exhibit (d)(6) NON- DISCLOSURE & CONFIDENTIALITY AGREEMENT THIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November, 2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at 725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109 (“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue, Radford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”). Recitals WHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and NEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter collectively referred to as the “Business Purpose”); WHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose; WHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW RIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing, graphically, electronically or by visual inspection of the premises of the Disclosing Party, and WHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party only to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms of this Agreement. NOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions, covenants and warranties herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings: (a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without limitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed products, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of the information disclosed, relating to NEW CONFIDENTIAL RIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and proprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public domain or general information that the Receiving Party may thereafter acquire. (b) “Disclosing Party” shall mean the Party disclosing Confidential Information. (c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information. (d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the fact that the Parties are discussing and evaluating the Business Purpose. 2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and Confidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving Party or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies, documents or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information. 3. Non-Disclosure Obligation. Each Party agrees: (a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement; (b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to its own Confidential Information (but in no event less than reasonable care); (c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors and consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and (d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the Disclosing Party. 4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities. (a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its directors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality consistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and (ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries, independent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party. The Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement. (b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A hereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto. (c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto. (d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto. (e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW RIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications, L.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER employees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K. 5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the Receiving Party is able to demonstrate by competent proof: (a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the Receiving Party; (b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving Party’s written records; (c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or disclosure; (d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to Confidential Information acquired from the Disclosing Party; (e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that (i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and (ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to obtain confidential treatment for the information required to be disclosed; or (f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party. 6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s Confidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation, that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made without the consent of the Disclosing Party. 7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving Party’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of regulatory compliance and compliance with the terms and conditions of this Agreement. 8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate with the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. 9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose. 10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party. 11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm and significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy. Accordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent jurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information without the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach. 12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date unless extended by the written consent of the Parties. 13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and followed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or (b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows. If to NEW RIVER: New River Pharmaceuticals Inc. The Governor Tyler 1881 Grove Ave Radford, VA 24141 Attention: Legal Department Fax No.: (540) 633-7939 If to SHIRE: Shire Pharmaceuticals, Inc. 725 Chesterbrook Boulevard Wayne, PA 19087 Attention: Legal Department Fax No.: 484-595-8163 If to L.E.K.: L.E.K. Consulting LLC 28 State Street 16th Floor Boston, MA 02109 Attention: Mike Clabault Fax No.: 617-951-9392 Any party may change its address for notices by giving the other party notice of such change in the manner provided above. 14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6, sets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a written agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the Parties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and (b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005, by and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the execution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each. 15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the Parties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision. 16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof). 17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective unless made in writing and signed by an authorized representative of the Party against whom waiver is sought. 18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the right to permit the other Party to evaluate the Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal obligation it may have. 19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange facsimile copies of this Agreement, all of which taken together shall constitute one agreement. 20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public information of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from purchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party shall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed under this Agreement. 21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under this Agreement in whole or in part without the prior written consent of the other Party. 22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this Agreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the other Party. 23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both Parties. IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above. NEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC By: -s- Randal J. Kirk By: -s- Jon Piper Name: Randal J. Kirk Name: Jon Piper Title: President & CEO Title: Vice President SHIRE PHARMACEUTICALS, INC By: -s- XXXXX Name: Scott Applebaum Title: Secretary

Not mentioned