kerry augustine lawsuit at chief's consulting orlando, florida

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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

THE MSA CARD, LLC, a Florida limited liability company, Plaintiff, vs. Case No. 2015-CA-7552 Complex Business Litigation Court ADRIANO SILVA, Defendant. /

AMENDED COMPLAINT

COMES NOW, Plaintiff, THE MSA CARD, LLC, a Florida limited liability

company (the “Plaintiff” or “The MSA Card”), by and through its undersigned

counsel, and hereby sues Defendants, CHIEFS CONSULTING GROUP LLC, a

Florida limited liability company (“Chiefs Consulting”), KERRY AUGUSTINE

(“Augustine”), and ADRIANO SILVA (“Silva” and together with Chiefs

Consulting and Augustine, “the “Defendants”), stating as follows:

NATURE OF THE ACTION

1. This is an action by The MSA Card against the Defendants for breach

of various contractual agreements, and also for fraud, conversion, misappropriation

of trade secrets, civil theft, replevin, injunctive relief and tortious interference with

a business relationship. Plaintiff seeks monetary damages, injunctive relief,

9/1/2015 FILED IN OFFICE TIFFANY M RUSSELL CLERK CIRCUIT COURT CO FL

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equitable relief, attorneys’ fees and court costs in connection with its claims

against the Defendants.

PARTIES, JURISDICTION AND VENUE

2. Plaintiff is a Florida limited liability company whose principal place

of business is located at 109 W. 1st Street, Sanford, Florida 32771.

3. Chiefs Consulting is a Florida limited liability company whose

principal place of business is located in Winter Park, Orange County, Florida.

4. Augustine is an in individual who is over the age of eighteen (18)

years, and upon information and belief, resides at 7952 Dunstable Circle, Orlando,

Florida.

5. Silva is an individual who is over the age of eighteen (18) years, and

upon information and belief, resides in Winter Garden, Florida.

6. This Court has jurisdiction over this matter because Plaintiff seeks

injunctive relief and/or monetary damages in excess of $15,000.00, exclusive of

interest, costs, and attorneys’ fees.

7. Venue is proper in Orange County, Florida, because the Defendants

reside in Orange County, Florida, the causes of action accrued in Orange County,

Florida, and the Defendants have consent to be sued in this Court in the relevant

written agreements by and between the parties.


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8. This Complex Business Litigation Court has jurisdiction over this

action because it involves claims concerning the misappropriation of trade secrets.

9. All conditions precedent to the filing of this action have been

performed, waived or excused by law.

GENERAL ALLEGATIONS

The MSA Card’s Business and Its Confidential Information

10. Plaintiff is in the business of providing services as a professional

custodial Medicare Set-aside Self-Administration account administrator.

11. Specifically, during the time it has been in business, Plaintiff has

developed highly profitable proprietary information and confidential tools and

materials, including, without limitation, software programs, codes, protocols and

methodologies, relating to Medicare set-aside Self-Administration account

administration, and this information is referred to in the Confidential Agreement

and more fully described below as “Confidential Information.”

12. This Confidential Information also specifically includes the

operational techniques, processes, formulas, protocols and interfaces associated

with the management of electronic health records, electronic medical records,

together with other ancillary processing techniques designed for the payment,

review, settlement and/or adjudication of medical claims.


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13. This Confidential Information also specifically includes all patents,

trademarks and trade names.

14. Plaintiff’s Confidential Information has been developed by Plaintiff

over time and Plaintiff has put forth a substantial investment in creating and

maintaining said information and materials.

15. Accordingly, if any of Plaintiff's Confidential Information was

revealed or disclosed for use by competitors, potential competitors or otherwise

used in any manner other than to the benefit of Plaintiff, it would cause immediate

and irreparable harm to Plaintiff.

The Non-Disclosure Agreement with Chiefs Consulting

16. Chiefs Consulting is in the business of providing consulting services

to its business clients in the areas of inter alia, financial management, executive

management, information and technology (“IT”) management, project

management and human resource management.

17. Prior to September 24, 2013, The MSA Card began discussions with

Chiefs Consulting for the purpose of exploring the possibility of entering into a

consulting arrangement with Chiefs Consulting whereby Chiefs Consulting would

provide IT consulting services to The MSA Card so as to assist The MSA Card in

designing and implementing a computer-based software to electronically process

the electronic health records and other electronic medical files necessary to


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Plaintiff’s business and described in paragraph 10 above (sometimes referred to

hereinafter as the “MSA Project”).

18. Because any contemplated consulting relationship between The MSA

Card and Chiefs Consulting would necessarily require The MSA Card to share its

Confidential Information with Chiefs Consulting, on September 24, 2013, The

MSA Card and Chiefs Consulting entered into a certain Mutual Confidentiality,

Non-Disclosure and Non-Circumvention Agreement (the “Non-Disclosure

Agreement”). A true and correct copy of the Non-Disclosure Agreement is

attached hereto as Exhibit “A.”

19. Pursuant to the terms of that certain Non-Disclosure Agreement, the

parties mutually agreed to protect one another’s Confidential Information and

Trade Secrets (together referred to in the Non-Disclosure Agreement as

“Proprietary Information”).

20. Understanding that Chiefs Consulting would likely engage third

parties to perform tasks related to the MSA Project, the parties further agreed as

follows:

The parties shall not disclose any Confidential Information to any other person without the prior written consent of the providing Party and then only after such other person executes a copy of this Agreement or a similar Agreement consented to by the providing Party.

Non-Disclosure Agreement at ¶ 1.


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21. Likewise, with regard to Trade Secrets, the parties similarly, agreed as

follows:

The parties shall not disclose any Trade Secrets to any other person without the prior written consent of the providing Party and then only after such other person executes a copy of this Agreement or a similar Agreement consented to by the providing Party.

Non-Disclosure Agreement at ¶ 2.

22. In Paragraph 12 of the Non-Disclosure Agreement, the parties agree

that in the event of a breach of the agreement, the aggrieved party shall be entitled

to injunctive relief.

23. In Paragraph 6 of the Non-Disclosure Agreement Chief’s Consulting

and the MSA Card agree that neither party will “use any of the Proprietary

Information disclosed by the other for any purposes other than the potential

Transaction and business relationships between the Parties for which such

information was disclosed.” In that same paragraph, Chief’s Consulting and the

MSA Card further agree that neither will “use, for the benefit of himself, itself or

any other person, persons, partnership, association, corporation or other entity, the

Proprietary Information in any manner whatsoever, other than in the course of the

receiving Party’s evaluation of the Transaction or as specifically authorized in

writing by the disclosing Party”. “The receiving Party also agrees not to analyze,

sell, show or give the Proprietary Information or documents relating thereto, or

products made or derived from them, to any third Party. (emphasis added).


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24. The language of paragraph 6 set forth above, prohibits Chief’s

Consulting from using The MSA Card’s software for any anything other than the

MSA Project.

25. Pursuant to the foregoing terms of the Non-Disclosure Agreement,

The MSA Card subsequently provided Chiefs Consulting with a form

Confidentiality and Work Product Agreement (“the Confidentiality Agreement”),

prepared by The MSA Card, a copy of which was to be executed by and between

any third parties (including computer programmers or software programmers) that

Chiefs Consulting would be hiring to work on the MSA Project, and The MSA

Card.

Chiefs Consulting Retains Silva and Silva Executes the Confidentiality Agreement

26. At some point during the discussions between Chiefs Consulting and

The MSA Card, Chiefs Consulting retained Silva, a software developer, to design

the software for the MSA Project.

27. On or about June 1, 2014, The MSA Card and Chiefs Consulting

formalized their consulting relationship in connection with the MSA Project, and

The MSA Card and Chiefs Consulting agreed that the project would be managed

by Chiefs Consulting’s Chief Innovations Officer, Augustine.

28. Pursuant to its consulting engagement with The MSA Card, Chiefs

Consulting, through Augustine, agreed to oversee and manage the work of the


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individual computer programmers and software developers, like Silva, that Chiefs

Consulting would itself retain in connection with the MSA Project.

29. As was required by the Non-Disclosure Agreement to ensure the

continuing confidentiality of The MSA Card’s Proprietary Information, Chiefs

Consulting provided Silva with a copy of the Confidentiality Agreement and Silva

executed that agreement on or about August 14, 2014 (“Silva’s Confidentiality

Agreement”). A true and correct copy of Silva’s Confidentiality Agreement is

attached hereto as Exhibit “B.”

30. Silva’s Confidentiality Agreement executed by Silva, as Contractor,

specifically provides, in relevant part, as follows:

1. Confidentiality

1.2 Except as may be required in the performance of the Contractor's duties with and for MSA Card, its subsidiaries, divisions or affiliates, Contractor will not at any time, whether during or following the termination of the Contractor's engagement with MSA Card, reveal to any person or organization any Confidential Information of MSA Card, and the Contractor will not use, attempt to use, or assist any third party in using any Confidential Information in any manner that may directly or indirectly injure or cause loss to MSA Card. Contractor agrees to comply with any and all procedures which MSA Card may adopt from time to time to preserve the confidentiality of tangible items relating to or containing Confidential Information.

1.3 "Confidential Information" shall mean information of any nature and in any form, whether disclosed prior or subsequent to signing this Agreement, which at the time or times concerned is not generally known to those persons engaged in business similar to that of MSA Card or to that contemplated by MSA Card or any subsidiary,


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division or affiliate of MSA Card, including, but not limited to, research and development projects and findings, plant design and layout, lists and other data regarding customers or suppliers and prospective customers or suppliers, accounting and financial records, computer programs, job plans, bidding specifications and practices, engineering data and drawings, equipment designs and specifications, Contractor Works (as defined in Section 2.1), shop plans and drawings, formulae, processes, personnel records and information, methods of manufacture, materials handling methods and procedures, costs and all pricing data, new device or product information and evaluations, know now, trade secrets, inventions, discoveries, and improvements, together with all copies of any of the foregoing.

2. Contractor Works.

2.1 All works of authorship, inventions, discoveries and work product, whether or not patentable, and in whatever form, which are created, made or developed by Contractor in the course of performing services for MSA Card, whether prior or subsequent to the signing of this Agreement, and which relate in any way to the current or future business of MSA Card (the "Contractor Works"), including the work itself, all media in which each Contractor Work is rendered or embodied, and all proprietary rights therein, including, but not limited to, invention rights, whether sole or joint, all copyrights created by or arising in Contractor shall belong exclusively to MSA Card. Contractor agrees that, to the extent possible, the Contractor Work is a “work made for hire” for MSA Card, as such term is defined in 17 U.S.C. Sec. 101, and that all copyrights in such Contractor Work shall be, and are, owned solely, completely, and exclusively by MSA Card. To the extent not transferred to MSA Card as a result of the Contractor Work's status as a work made for hire, the Contractor hereby assigns, without further consideration, to MSA Card, its successors and assigns, all of Contractor's right, title, and interest in and to the Contractor Work.

2.3 Contractor represents and warrants (a) that all Contractor Works are the original work of the Contractor; (b) that Contractor is the sole author of the Contractor Work and has full power to grant the rights hereby conveyed to MSA Card; (c) that the Contractor Work contains no matter which is libelous or otherwise unlawful, or which infringes any right of privacy, proprietary right, copyright (whether


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statutory or common law) or other intellectual property right of any third party; and (d) that Contractor has not and will not hereafter enter into any agreement or understanding with any person, firm or corporation other than MSA Card for the rights in the Contractor Work.

3. Return of Confidential Information and Contractor Works. Upon request by MSA Card, and in any event upon termination of Contractor's engagement with MSA Card for whatever reason and irrespective of whether said termination of engagement is voluntary on the part of Contractor, Contractor will deliver to MSA Card all Confidential Information and Contractor Works (including all tangible embodiments thereof), as well as all property belonging to MSA Card, which is in Contractor's custody, possession or control.

4. Remedies. Contractor acknowledges and agrees that in the event of any breach of this agreement, in addition to any other remedies to which MSA Card may be entitled, including, but not limited to, money damages, MSA Card may seek injunctive or other equitable relief to enforce this agreement and to mitigate any damages.

31. Pursuant to paragraph 1.3 of Silva’s Confidentiality Agreement, all

Contractor Works (as specifically defined in paragraph 2 of the Confidentiality

Agreement and set forth above) constitute “Confidential Information” belonging to

The MSA Card.

Chiefs Consulting’s Scheme to Steal The MSA Card’s Confidential Information

32. Pursuant to the terms of the Non-Disclosure Agreement and the

understanding between The MSA Card and Chiefs Consulting that any relationship

between the two was strictly of a “work-for-hire” nature, Chiefs Consulting

obtained from Silva, Silva’s [executed] Confidentiality Agreement, and delivered

that executed agreement to The MSA Card along with the representation that,


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consistent with the Non-Disclosure Agreement, any and all proprietary,

confidential and trade secret information disclosed to Silva and/or Chiefs

Consulting, including Silva’s work product (“Contractor Works”), belonged to The

MSA Card.

33. Entirely unbeknownst to The MSA Card however, and

notwithstanding paragraphs 1 and 2 of the Non-Disclosure Agreement (between

The MSA Card and Chiefs Consulting) which required any third parties retained

by Chiefs Consulting, like Silva, to execute a Confidentiality Agreement, and

notwithstanding Silva’s Confidentiality Agreement, months prior to August 14,

2014 when Silva executed Silva’s Confidentiality Agreement and even prior to

June 1, 2014 when The MSA Card formally engaged the services of Chiefs

Consulting, on or about May 15, 2014, Silva, at Chiefs Consulting’s direction,

executed a certain Independent Contractor Agreement pursuant to which Silva

contractually agreed that any and all confidential and proprietary information to

which Silva would come to have access during the course of Silva’s work on the

MSA Project (i.e., The MSA Card’s Confidential Information) belonged

exclusively to Chiefs Consulting. A true and Correct Copy of the Independent

Contractor Agreement is attached hereto as Exhibit “C.”

34. Inconceivably, Schedule “A” attached to and incorporated into the

Independent Contractor, rendered all of The MSA Card’s confidential information


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provided to Silva during the course of his work on the MSA Project as the property

of Chiefs Consulting:

1. Engagement with the Company as an independent contractor or consultant ("Engagement") will give the Consultant access to proprietary and confidential information belonging to the Company, its customers, its suppliers and others (the proprietary and confidential information is collectively referred to in this Agreement as "Confidential Information"). Confidential Information includes but is not limited to customer lists, marketing plans, proposals, contracts, technical and/or financial information, databases, software and know-how, All Confidential Information remains the confidential and proprietary information of the Company.

Schedule “A” attached to the Independent Contractor Agreement at ¶ 1.

35. Further, Schedule “A” also rendered all of Silva’s work product (i.e.,

Silva’s “Contractor Works” as identified in Silva’s Confidentiality Agreement) to

be the exclusive property of Chiefs Consulting:

3. The Consultant may in the course of the Consultant's Engagement with the Company conceive, develop or contribute to material or information related to the Business of the Company, including, without limitation, software, technical documentation, ideas, inventions (whether or not patentable), hardware, know-how, marketing plans, designs, techniques, documentation and records, regardless of the form or media, if any, on which such is stored (referred to in this Agreement as "Proprietary Property"). The Company shall exclusively own, and the Consultant does hereby assign to the Company, all Proprietary Property which the Consultant conceives, develops or contributes to in the course of the Consultant's Engagement with the Company and all intellectual and industrial property and other rights of any kind in or relating to the Proprietary Property, including but not limited to all copyright, patent, trade secret and trade-mark rights in or relating to the Proprietary Property. Material or information conceived, developed or contributed to by the Consultant outside work hours on the Company's premises or through


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the use of the Company's property and/or assets shall also be Proprietary Property and be governed by this Agreement if such material or information relates to the Business of the Company. The Consultant shall keep full and accurate records accessible at all times to the Company relating to all Proprietary Property and shall promptly disclose and deliver to the Company all Proprietary Property.

Schedule “A” attached to the Independent Contractor Agreement at ¶3.

36. Thus, even before Silva has entered into Silva’s Confidentiality

Agreement to protect The MSA Card’s Confidential Information (including all

“Contractor Works”) per the Non-Disclosure Agreement between The MSA Card

and Chiefs Consulting, Chiefs Consulting had already required Silva (and its other

consultants) to execute a separate agreement in which Silva agreed that all of The

MSA Card’s Confidential Information belonged to Chiefs Consulting.

37. By virtue of this calculated and fraudulent scheme, Chiefs Consulting

had no intention of safeguarding or protecting The MSA Card’s Confidential

Information and Trade Secrets and, instead, had every intention to steal and

misappropriate that Confidential Information and Trade Secrets for its own use,

benefit, profit, commercial gain and commercial enterprise.

The MSA Card Learns of Chiefs Consulting’s Fraud

38. In or about June 2015, The MSA Card became aware of certain

peculiar and suspicious activities on its computer systems which, at that time, were

under the control of Silva, Chiefs Consulting and Augustine.


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39. Specifically, through its investigation, Plaintiff learned that Silva and

Chiefs Consulting, at the direction of Augustine, had electronically transferred

certain Confidential Information belonging to Plaintiff from Plaintiff’s protected

computer servers and networks to cloud-based computer storage servers and

networked “cloud” infrastructures owned, operated and controlled by Silva and/or

Chiefs Consulting. Silva and/or Chiefs Consulting, through Augustine, made these

electronic transfers without Plaintiff’s consent or knowledge.

40. Plaintiff’s investigation revealed that Silva and/or Chiefs Consulting,

at the direction of Augustine, had accomplished the electronic transfers of

Plaintiff’s Confidential Information by, among other things, granting computer

access, privileges and authorizations to himself and third parties, which access,

privileges and authorizations have never been authorized or approved by Plaintiff

or its agents, and which access, privileges and authorizations fall well beyond the

scope of Silva’s consulting duties for Plaintiff.

41. In making the unauthorized transfers of Plaintiff’s Confidential

Information away from Plaintiff’s protected computer servers and networks to

servers and networks exclusively controlled by Silva, Silva and Chiefs Consulting,

through Augustine, willfully intended to abort and deny Plaintiff’s access to

Confidential Information belonging to Plaintiff.


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42. Plaintiff has demanded a return of its Confidential Information,

including all Contractor Works and Silva, Chiefs Consulting, and Augustine have

refused to return, and have failed to return, those materials to Plaintiff.

43. In bringing this action, Plaintiff has retained the legal services of the

undersigned and is obligated to pay the undersigned a reasonable fee for said legal

services.

COUNT I - BREACH OF SILVA’S CONFIDENTIALITY AGREEMENT (By Plaintiff against Silva)

44. This is an action for damages and equitable relief for Silva’s breach

Silva’s Confidentiality Agreement.

45. Plaintiff realleges paragraphs 1-43 of this Amended Complaint as if

fully set forth herein.

46. In connection with the performance of his consulting duties, Silva

executed Silva’s Confidentiality Agreement, pursuant to the terms of which Silva

agreed to hold all Confidential Information, including all Contractor Works

belonging to Plaintiff, in strict confidence, and also agreed to exercise a reasonable

degree of care to prevent the disclosure of said Confidential Information to others.

47. Silva has breached the terms of Silva’s Confidentiality Agreement by

(1) electronically transferring Plaintiff’s Confidential Information to cloud-based

computer servers and networks exclusively controlled by Silva or by third parties

without the permission, authorization or consent of Plaintiff; (2) by using specific


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configurations of cloud-based computer servers and networks exclusively

controlled by Silva or by third parties that deny or abort Plaintiff’s access to said

information; (3) by using computer platforms and “cloud” network infrastructure

exclusively controlled by Silva, to misappropriate Plaintiff’s Confidential

Information and share and disclose said information with third-parties; and (4) by

intentionally and willfully taking actions to hinder, block, and obstruct Plaintiff’s

access to its own Confidential Information.

48. Silva has breached, and is currently breaching Silva’s Confidentiality

Agreement by continuing to possess Plaintiff’s Confidential Information, including

all Contractor Works, and by providing and disseminating said Confidential

Information to Chiefs Consulting, and others.

49. Silva has further breached Silva’s Confidentiality Agreement by

failing to return the Confidential Information, including all Contractor Works, to

Plaintiff pursuant to paragraph 3 of the Confidentiality Agreement.

50. Specifically, as set forth above, all Contractor Works constitute

Confidential Information belonging exclusively to Plaintiff, and Silva has

breached, and continues to breach, Silva’s Confidentiality Agreement by failing to

return to Plaintiff the following materials and information relating to and

developed for the software that Silva was engaged to create for Plaintiff, all of


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which constitute “Contractor Works” belonging to Plaintiff under Silva’s

Confidentiality Agreement:

(a) All architect documents that provide an overview of the

software code logic and structure and which provide a detailed

explanation of why the code was built as it was;

(b) All code documents including, without limitation, all

README.* files, APIs, messaging and codes that are the tools

that provide a roadmap to each code;

(c) All user documents that describe how the code is used in an

operational context and describe the requirements and input and

output functions for the code;

(d) All operational documentation that describe the ongoing

support and maintenance tasks required to keep the system

functional;

(e) All design diagrams;

(f) All coding diagrams;

(g) All software codes;

(h) All logic diagrams and pseudo codes;

(i) All schematics, sketches, and process flow diagrams;

(j) All developer notes and instructional materials; and


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(k) All high level design explanations and theories of operations.

51. As a result of Silva’s actions, Plaintiff has suffered and continues to

suffer damages.

52. Pursuant to paragraph 4 of Silva’s Confidentiality Agreement,

Plaintiff is entitled to money damages and injunctive relief as a result of Silva’s

breaches.

53. Only through the issuance of an injunction can Silva be prevented

from continuing to breach the agreement.

54. Silva’s unlawful acts, in direct and knowing violation of the

Confidentiality Agreement, have caused or will continue to cause irreparable

damage to Plaintiff.

55. Silva’s actions are intentional, willful, wanton, reckless, and

calculated to harm Plaintiff in its business affairs.

56. The restraints imposed by the provisions of Silva’s Confidentiality

Agreement are justified by one or more legitimate business interests as specified

hereinabove.


Agreement are reasonable and narrowly tailored to protect Plaintiff’s legitimate

business interests.


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Agreement are consistent with applicable public policy.

59. Silva, in obtaining and using Plaintiff’s Confidential Information,

including all Contractor Works, and by not returning this information on demand

of Plaintiff has breached Silva’s Confidentiality Agreement.

60. As a proximate cause of Silva’s unlawful conduct as described above,

Plaintiff has suffered and will continue to suffer damages that cannot be reasonably

ascertained at present.

61. Unless restrained by this Court, Silva will continue his unlawful

actions and Plaintiff will be irreparably harmed.

62. Plaintiff has no adequate remedy at law and is, therefore, entitled to an

injunction enjoining Silva from further unlawful acts.

63. Plaintiff has a substantial likelihood of success on the merits of its

claims against Silva.

64. The threatened injury to Plaintiff outweighs any possible harm to

Silva. Without the return of its Confidential Information, Plaintiff risks losing all

of the sensitive, confidential and highly proprietary materials that it has spent years

developing and safeguarding.

65. Additionally, without the return of the Contractor Works belonging to

Plaintiff, Plaintiff is unable to meaningfully engage a successor software


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programmer to take over the remaining programming functions from where Silva

left off.

66. In granting injunctive relief, this Court will not disserve the public

interest.

67. Pursuant to paragraph 5 of Silva’s Confidentiality Agreement,

Plaintiff is entitled to recover its reasonable attorneys’ fees and costs incurred in

prosecuting this action.

WHEREFORE, for the foregoing reasons, Plaintiff, THE MSA CARD,

LLC, respectfully requests that this Court enter judgment in its favor and (1) award

monetary damages to Plaintiff; (2) enter an injunction permanently enjoining

Defendant, ADRIANO SILVA, from violating Silva’s Confidentiality Agreement;

(3) enter an injunction requiring Defendant, ADRIANO SILVA, to immediately

return to Plaintiff, Plaintiff's Confidential Information and Contractor Works

belonging to Plaintiff; (4) award Plaintiff, THE MSA CARD, LLC, its reasonable

attorneys’ fees and costs; and (5) award any and all further relief this Court deems

just and proper.

COUNT II – FRAUD/FRAUD IN THE INDUCEMENT (By Plaintiff against Augustine and Chiefs Consulting)

68. This is an action for damages for Augustine and Chiefs Consulting’s

fraud.


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70. Over the course of the relationship between Plaintiff and Augustine

and Chiefs Consulting, Augustine and Chiefs Consulting made continuing false

representations of material fact, to Plaintiff, including that they would safeguard

Plaintiff’s Confidential Information.

71. Indeed, Chiefs Consulting, through Augustine, agreed to enter into the

Non-Disclosure Agreement, and did in fact enter into the Non-Disclosure

Agreement so as to ensure that it would safeguard Plaintiff’s Confidential

Information and not divulge that information to others.

72. Chiefs Consulting and Augustine made representations to Plaintiff and

entered into a consulting relationship with Plaintiff for the purpose of inducing The

MSA Card to act in reliance upon Chiefs Consulting and Augustine’s assurances

that they would safeguard Plaintiff’s Confidential Information, all in an attempt to

subsequently steal Plaintiff’s Confidential Information Product despite the

continuing false representations of material fact.

73. Chiefs Consulting and Augustine intended for Plaintiff to rely upon

their representations and their assurances that they would safeguard Plaintiff’s

Confidential Information; that they would monitor and supervise the activities of

any consultants retained by Chiefs Consulting to work on the MSA Project; and


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that they would require any consultants to likewise safeguard Plaintiff’s

Confidential Information by directing those consultants to execute the

Confidentiality Agreement prepared by Plaintiff.

74. Plaintiff justifiably acted in reliance upon Chiefs Consulting and

Augustine representations, as Plaintiff entered into a consulting relationship with

Chiefs Consulting based upon those representations.

75. At the time they made the representations to Plaintiff, Chiefs

Consulting knew them to be false.

76. Plaintiff has been damaged due to the continuing false representations

of Chiefs Consulting and Augustine, as Chiefs Consulting and Augustine now

claim ownership of Plaintiff’s Confidential Information and have misappropriated

that information for their own competitive use and advantage.


LLC, respectfully requests that this Court enter judgment against Defendants,

CHIEFS CONSULTING GROUP LLC and KERRY AUGUSTINE, for all

damages together with all interest, costs, and such other and for such other and

further relief as this Court deems just and proper.

COUNT III – CONVERSION (By Plaintiff against Chiefs Consulting and Silva )

77. This is an action against Chiefs Consulting and Silva for conversion.


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set forth fully herein.

79. Beginning on or about May 15, 2014 Chiefs Consulting and Silva

converted Confidential Information that was the property of Plaintiff to their own

use.

80. Chiefs Consulting and Silva’s actions constitute an action of dominion

wrongfully asserted over the property of Plaintiff that is inconsistent with the

Defendants’ lack of ownership in that property.

81. Plaintiff has demanded that Chiefs Consulting and Silva return said

Confidential Information to Plaintiff and Chiefs Consulting and Silva have refused

to return said Confidential Information to Plaintiff.

82. As a result of the conversion Plaintiff has been damaged.


LLC, respectfully requests that this Court enter judgment against Defendants,

CHIEFS CONSULTING GROUP LLC and ADRIANO SILVA, for damages,

interest, court costs and such other and further relief as this Court deems just and

proper.

COUNT IV - MISAPPROPRIATION OF TRADE SECRETS (By Plaintiff against Chiefs Consulting and Silva)

83. This is an action for injunctive relief and damages pursuant to Chapter

688, Florida Statutes, for misappropriation of trade secrets.


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85. Plaintiff's Confidential Information, including all Contractor Works as

defined in Silva’s Confidentiality Agreement and all Confidential Information and

Trade Secrets as further defined in the Non-Disclosure Agreement, as are trade

secrets as defined in Chapter 688, Florida Statutes.

86. These trade secrets:

(a) give Plaintiff a business advantage over those who do not know or use them;

(b) are not known, are kept secret from those outside of Plaintiff’s employ, or are developed by Plaintiff at great expense and effort over a substantial period of time;

(c) cannot easily be duplicated by others;

(d) are valued by Plaintiff for use in a business, are the subject of measures taken by Plaintiff to prevent them from becoming available to others than those to whom access has been granted by Plaintiff for the purpose of fulfilling their job duties while in Plaintiff’s employ;

(e) are protected further by the requirement that all employees, consultants and agents of Plaintiff execute a contract containing confidentiality provisions; and

(f) are protected further by a practice and policy by Plaintiff of protecting its “Trade Secrets” and “Confidential and/or Proprietary Information" including, without limitation, software codes, drawings, customers, suppliers, financial records, bidding specifications, processes, and methods of manufacture.


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87. Chiefs Consulting and Silva have improperly used and disclosed said

Trade Secrets to third parties, even though said information was acquired under

circumstances giving rise to a duty to maintain its secrecy and limit its use; such

improper use and disclosure has been made by Chiefs Consulting and Silva in their

own competing business activities.

88. In particular, Silva has used and is presently using Plaintiff’s “Trade

Secrets” and “Confidential Information” in his own business activities and due to

the Independent Contractor Agreement between Silva and Chiefs Consulting, Silva

has provided that information to Chiefs Consulting who has demanded that

Plaintiff obtain a “license” from Chiefs Consulting for a fee, to access the

Confidential Information misappropriated by Chiefs Consulting and Silva that

belongs to Plaintiff.

89. As a result of the foregoing, Plaintiff has suffered irreparable harm

and will suffer additional irreparable harm from the loss and the benefits of secrecy

of its Trade Secrets and Confidential Information for which it has no adequate

remedy at law.

90. Chiefs Consulting and Silva actions are intentional, willful, wanton,

reckless, and calculated to harm Plaintiff in its business affairs.

91. Plaintiff has a clear right to relief and there is a substantial likelihood

of success on the merits.


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92. The public interest will be served by the granting of injunctive relief.

93. Plaintiff is entitled to injunctive relief pursuant to Section 688.003,

Florida Statutes.

94. Plaintiff is also entitled to damages pursuant to Section 688.004(1),

Florida Statutes, for the actual loss caused by the misappropriation and the unjust

enrichment caused by the misappropriation.

95. Pursuant to Section 688.004(2), Silva's actions were willful and

malicious and therefore Plaintiff seeks exemplary damages in the amount not to

exceed twice any award made under Section 688.004(1).


LLC, respectfully requests that this Court enter an injunction permanently (1)

enjoining Defendant, ADRIANO SILVA, from violating Silva’s Confidentiality

Agreement; (2) enjoining Defendant, CHIEFS CONSULTING GROUP LLC, from

violating the Non-Disclosure Agreement; (3) enjoining Defendants, CHIEFS

CONSULTING GROUP LLC and ADRIANO SILVA, from using Plaintiff's

confidential and proprietary information and contractor works belonging the

Plaintiff as fully described in Silva’s Confidentiality Agreement and in the Non-

Disclosure Agreement; (4) enjoining Defendants, CHIEFS CONSULTING

GROUP LLC and ADRIANO SILVA, from transferring any of Plaintiff's

confidential and proprietary information and contractor to any third party; (4)


25063687 v1 27

requiring Defendants, CHIEFS CONSULTING GROUP LLC and ADRIANO

SILVA, to immediately return to Plaintiff any confidential and proprietary

information and contractor works belonging the Plaintiff; (5) award Plaintiff

damages pursuant to Section 688.005, Florida Statutes; (6) award Plaintiff its

reasonable attorneys’ fees and costs; and (7) award any and all further relief this

Court deems just and proper.

COUNT V – CIVIL THEFT (By Plaintiff against Chiefs Consulting and Silva)

96. This is an action for civil theft pursuant to Section 772.11, Florida

Statutes and Section 812.014, Florida Statutes.



98. Beginning on or about May 15, 2014, Chiefs Consulting and Silva

knowingly obtained and used, Plaintiff’s property, to-wit, Plaintiff’s Confidential

Information, including the Contractor Works belonging to Plaintiff with the intent

to:

(a) permanently deprive Plaintiff of Plaintiff’s right to the use of

the property and the benefit therefrom; and,

(b) appropriated the property to his own use or to the use of

persons or entities not entitled thereto.


25063687 v1 28

99. The estimated value of the Confidential Information, including

Contractor’s Works that was then the property of Plaintiff is over twenty-five

million dollars ($25,000,000).

100. Plaintiff has been damaged by Chiefs Consulting and Silva’s violation

of Section 812.014, Florida Statutes.

101. Chiefs Consulting and Silva have refused to return Plaintiff’s

Confidential Information, including Contractor’s Works.

102. Pursuant to Section 772.11, Florida Statutes, Plaintiff is entitled to

threefold its actual damages sustained, or at least, seventy-five million dollars.

103. Pursuant to Section 772.11(1), Florida Statutes, Plaintiff is entitled to

an award of attorney's fees and costs incurred in the prosecution of this action.


LLC, respectfully requests that this Court enter judgment in its favor and against

Defendants, CHIEFS CONSULTING GROUP LLC and ADRIANO SILVA, for

threefold damages; interest; attorneys' fees; costs of this action; and for such other

and further relief as this Court deems just and proper.

COUNT VI – REPLEVIN (By Plaintiff against Chiefs Consulting and Silva)

104. This is an action pursuant to Chapter 78, Florida Statutes, to recover

possession of the Confidential Information, including all Contractor Works


25063687 v1 29

belonging to Plaintiff and that Plaintiff believes to be located in Orange County,

Florida.



106. The specific description of the Confidential Information, including all

Contractor Works, is set forth in the agreements attached to this Amended

Complaint.

107. Upon information and belief, the Confidential Information, including

the Contractor Works is located at 626 Lost Grove Circle, Winter Garden, Florida,

34787 and at 7952 Dunstable Circle, Orlando, Florida.

108. To Plaintiff’s best knowledge, information, and belief, the

Confidential Information, including the Contractor Works is located in Orange

County, Florida.

109. By virtue of Silva’s Confidentiality Agreement, and the Non-

Disclosure Agreement, Plaintiff is the owner of the Confidential Information,

including the Contractor Works and therefore, Plaintiff is entitled to possession of

the Confidential Information, including the Contractor Works.

110. The Confidential Information, including the Contractor Works is

being wrongfully detained by Chiefs Consulting and Silva.


25063687 v1 30

111. Upon information and belief, the Confidential Information, including

the Contractor Works has not been taken for any tax assessment or fine pursuant to

law and has not been taken under an execution or attachment.

112. Plaintiff has demanded the return of its Confidential Information,

including the Contractor Works and the Defendants have refused to return it.


LLC, respectfully requests that this Court (a) enter an order pursuant to section

78.065, Florida Statutes, directing Defendants, CHIEFS CONSULTING GROUP

LLC and ADRIANO SILVA, to show cause, upon hearing at a time and date

certain, why possession of the Confidential Information, including the Contractor

Works should not be granted to Plaintiff; (b) upon notice and a hearing on the

Order to Show Cause, enter an order directing the Clerk of the Circuit Court to

issue a Writ of Replevin directing the Sheriff of Orange County and the State of

Florida to take possession of the Confidential Information, including the

Contractor Works and deliver same to Plaintiff; (c) enter a Final Judgment of

Replevin in favor of Plaintiff, THE MSA CARD, LLC, and against Defendants,

CHIEFS CONSULTING GROUP LLC and ADRIANO SILVA, awarding

permanent possession of the Confidential Information, including the Contractor

Works to Plaintiff and (d) order any such other and further relief the Court deems

just and proper.


25063687 v1 31

COUNT VII-INJUNCTIVE RELIEF (By Plaintiff against the Defendants)

113. This is an action for equitable relief.



115. Unless restrained by this Court, the Defendants will continue their

unlawful actions and Plaintiff will be irreparably harmed by the disclosure of

Plaintiff’s Confidential Information that Plaintiff has spent years developing and

safeguarding.


injunction enjoining the Defendants from further unlawful acts.


claims against the Defendants.

118. The threatened injury to Plaintiff outweighs any possible harm to the

Defendants.


interest.

120. The Defendants have harmed and continues to harm Plaintiff.


LLC, respectfully requests that this Court enter an injunction permanently (1)

enjoining Defendant, ADRIANO SILVA, from violating Silva’s Confidentiality


25063687 v1 32

Agreement; (2) enjoining Defendants, CHIEFS CONSULTING GROUP LLC and

KERRY AUGUSTINE, from violating the Non-Disclosure Agreement; (3)

enjoining the Defendants from using Plaintiff's confidential and proprietary

information and contractor works belonging the Plaintiff as fully described in

Silva’s Confidentiality Agreement and in the Non-Disclosure Agreement; (4)

enjoining the Defendants from transferring any of Plaintiff's confidential and

proprietary information and contractor to any third party; (4) requiring the

Defendants to immediately return to Plaintiff any confidential and proprietary

information and contractor works belonging the Plaintiff; (5) awarding Plaintiff its

reasonable attorneys’ fees and costs; and (6) award any and all further relief this

Court deems just and proper.

COUNT VIII - TORTIOUS INTERFERENCE (By Plaintiff against Chiefs Consulting)

121. This is an action for damages.



123. By virtue of and as evidenced by Silva’s Confidentiality Agreement,

at all material times, Plaintiff had an existing contractual business relationship with

Silva.

124. Chiefs Consulting had actual knowledge of said existing contractual

business relationship between Plaintiff and Silva, because, it was Chiefs


25063687 v1 33

Consulting who in fact directed Silva to execute Silva’s Confidentiality

Agreement.

125. Chiefs Consulting intentionally and unjustifiably interfered with the

business relationship between Plaintiff and Silva by, without limitation, requiring

Silva to execute the Independent Contractor Agreement prior to Silva executing

Silva’s Confidentiality Agreement for the purpose of stealing and obtaining control

over Plaintiff’s Confidential Information for its own use and benefit.

126. Plaintiff has been damaged as a result of Chiefs Consulting’s

interference with Plaintiff’s relationship with Silva.


LLC, respectfully requests that this Court enter judgment in its favor and against

Defendant, CHIEFS CONSULTING GROUP LLC, and award damages to

Plaintiff and any such other and further relief as this Court deems just and proper.

COUNT IX - BREACH OF THE NON-DISCLOSURE AGREEMENT (By Plaintiff against Chiefs Consulting)

127. This is an action for damages and equitable relief for Chiefs

Consulting’s breach of the Non-Disclosure Agreement.



129. Pursuant to paragraph 4 of the Non-Disclosure Agreement, Chiefs

Consulting agreed to safeguard Plaintiff’s Confidential Information, Proprietary


25063687 v1 34

Information and Trade Secrets and to return and surrender said information upon

Plaintiff’s request.

130. Pursuant to paragraph 14 of the Non-Disclosure Agreement, Chiefs

Consulting agreed that Plaintiff’s Confidential Information, Proprietary

Information and Trade Secrets “remained the exclusive property of [Plaintiff].”

131. Pursuant to the terms of the Non-Disclosure Agreement, Chiefs

Consulting agreed to hold all of Plaintiff’s Confidential Information, Proprietary

Information and Trade Secrets Confidential Information, in strict confidence, and

also agreed to exercise a reasonable degree of care to prevent the disclosure of said

Confidential Information to others.

132. Chiefs Consulting has breached the terms of the Non-Disclosure

Agreement by (1) electronically transferring, or directing others to electronically

transfer Plaintiff’s Confidential Information to cloud-based computer servers and

networks exclusively controlled by Chiefs Consulting without the permission,

authorization or consent of Plaintiff; (2) by using specific configurations of cloud-

based computer servers and networks exclusively controlled by Chiefs Consulting

or its agents that deny or abort Plaintiff’s access to said information; (3) by using

computer platforms and “cloud” network infrastructure exclusively controlled by

Chiefs Consulting or its agents, to misappropriate Plaintiff’s Confidential

Information and share and disclose said information with third-parties; and (4) by


25063687 v1 35

intentionally and willfully taking actions to hinder, block, and obstruct Plaintiff’s

access to its own Confidential Information.

133. Chiefs Consulting has breached, and is currently breaching, the Non-

Disclosure Agreement by continuing to possess Plaintiff’s Confidential

Information and by providing and disseminating said Confidential Information to

third parties.

134. Chiefs Consulting has further breached the Non-Disclosure

Agreement by failing to return the Confidential Information to Plaintiff upon

Plaintiff’s demand.

135. Chiefs Consulting has further breached the Non-Disclosure

Agreement and the implied covenant of good faith and fair dealings accompanying

the Non-Disclosure Agreement, by directing Silva to execute that certain

Independent Contractor Agreement in which Chiefs Consulting hails all of

Plaintiff’s Confidential Information, including the work product of Silva, to

exclusively belong to Chiefs Consulting.

136. Pursuant to paragraph 12 of the Non-Disclosure Agreement, Plaintiff

is entitled to money damages and injunctive relief as a result of Chiefs

Consulting’s breaches.

137. Only through the issuance of an injunction can Chiefs Consulting be

prevented from continuing to breach the agreement.


25063687 v1 36

138. Chiefs Consulting’s unlawful acts, in direct and knowing violation of

the Non-Disclosure Agreement, have caused or will continue to cause irreparable

damage to Plaintiff.

139. Chiefs Consulting’s actions are intentional, willful, wanton, reckless,

and calculated to harm Plaintiff in its business affairs.

140. The restraints imposed by the provisions of the Non-Disclosure

Agreement are justified by one or more legitimate business interests as specified

hereinabove.


Agreement are reasonable and narrowly tailored to protect Plaintiff’s legitimate

business interests.


Agreement are consistent with applicable public policy.

143. As a proximate cause of Chiefs Consulting’s unlawful conduct as

described above, Plaintiff has suffered and will continue to suffer damages that

cannot be reasonably ascertained at present.

144. Unless restrained by this Court, Chiefs Consulting will continue its

unlawful actions and Plaintiff will be irreparably harmed.


injunction enjoining Chiefs Consulting from further unlawful acts.


25063687 v1 37


claims against Chiefs Consulting.

147. The threatened injury to Plaintiff outweighs any possible harm to

Chiefs Consulting. Without the return of its Confidential Information, Plaintiff

risks losing all of the sensitive, confidential and highly proprietary materials that it

has spent years developing and safeguarding.

148. Additionally, without the return of Silva’s work product (Contractor

Works) belonging to Plaintiff, Plaintiff is unable to meaningfully engage a

successor software programmer to take over the remaining programming functions

from where Silva and Chiefs Consulting left off.


interest.

150. Pursuant to paragraph 19 of the Non-Disclosure Agreement, Plaintiff

is entitled to recover its reasonable attorneys’ fees and costs incurred in

prosecuting this action.


LLC, respectfully requests that this Court enter judgment in its favor and (1) award

monetary damages to Plaintiff; (2) enter an injunction permanently enjoining

Defendant, CHIEFS CONSULTING GROUP LLC, from violating the Non-

Disclosure Agreement (3) enter an injunction requiring Defendant, CHIEFS


25063687 v1 38

CONSULTING GROUP LLC, to immediately return to Plaintiff, Plaintiff's

Confidential Information and Contractor Works belonging to Plaintiff; (4) award

Plaintiff, THE MSA CARD, LLC, its reasonable attorneys’ fees and costs; and (5)

award any and all further relief this Court deems just and proper.

DEMAND FOR JURY TRIAL

Plaintiff demands a trial by jury for all issues so triable.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 28, 2015, a true and correct copy of

the foregoing was filed with the Clerk of Court by using the Florida Courts E-

Filing Portal which will send notice of electronic filing and complete service of the

foregoing as required by Fla. R. Jud. Admin. 2.516 to David H. Popper, Esquire

([email protected]); South Milhausen, P.A., 1000 Legion Place, Suite

1200, Orlando, FL 32801.

/s/ Sheena A. Thakrar HOWARD S. MARKS Florida Bar Number: 0750085 Email: [email protected] Secondary: [email protected] SHEENA A. THAKRAR Florida Bar No. 0871141 Email: [email protected] Secondary: [email protected]

BURR & FORMAN LLP 200 S. Orange Avenue, Suite 800 Orlando, Florida 32801 Telephone: (407) 540-6600

Attorneys for Plaintiff


MUTUAL CONFIDENTIALITY, NON-DISCLOSURE AND NON-CffiCUMVENTION AGREEMENT

THIS MUTUAL CONFIDENTIALITY, NON-DISCLOSURE AND NONCIRCUMVENTION AGREEMENT is made and entered into as of the 24 day of September, 2013, by and among The MSA Holding Group, LLC, a Florida limited liability company, The MSA Card, LLC, a Florida limited liability company, and The MSA Card Technology Group, LLC, a Florida limited liability company, all with an address of I 09 W. 1st St., Sanford, Florida 32771, and any and all affiliates thereof (collectively "MSA") on the one hand, and Chiefs Consulting Group, LLC, a Florida Limited Liability Company, with an address of P.O. Box 4777, Winter Park, FL 32793, and any and all affiliates thereof (collectively "CHIEFS CONSULTING") on the other hand. MSA and CHIEFS CONSULTING may sometimes be referred to herein individually as a "Party" and collectively, as the "Parties."

WHEREAS, the Parties have previously shared and intend to share certain other information and hold discussions to explore the possibility of entering into a business arrangement or transaction (a "Transaction") between them, but desire to protect their respective information from unauthorized disclosure, misappropriation and misuse.

NOW, THEREFORE, for and in consideration of the mutual premises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Protection of ConfidentiaLJnformation. During the course of their discussions, each Party has previously disclosed and may disclose additional information ("Confidential Information") concerning its business and operations to the other Party which is not designated as a Trade Secret, as defined in paragraph 2 hereof, and which is not Noncovered Information, as defined in paragraph 3 hereof. The Parties agree that they will not'disclose, except to their employees, attorneys, accountants, consultants and lenders who have a need to know in the performance of their duties in conoection with evaluating a potential Transaction (the "Parties' Representatives"), any Confidential InfOrmation received from the other Party. Notwithstanding anything herein to the contrary, the Parties agree to notify all of such Parties' Representatives to whom any such information is communicated or disclosed of the terms of this Agreement in advance of such disclosure. The Parties shall not disclose any Confidential Information to any other person without the prior written consent of the providing Party and then only after such other person executes a copy of this Agree11fent or a similar Agreement consented to by the providing Party. MSA and CHIEFS CONSULTING specitically agree Confidential Information under this Agreement shall include, but not be limited to:

38461 v?.

(a) terms of contractual agreements with vendors or proposed vendors;

(b) terms of contractual agreements with purchasers of their _respective products;

(c) terms of contractual agreements with Parties supplying services which are used to deliver their respective products or services;

- I -

EXHIBIT

I A


I ! .

(d) know-how, memoranda, personal notes, worksheets, computer data, source codes and other proprietary and competition sensitive information, prospective and existing customers; and

.C e) operational, sales, promotional and marketing methods and techniques and studies, and other financial and corporate records.

Notwithstanding anything to the contrary in this Agreement, any other information proposed to be given to the other Party hereto shall not be Confidential Information unless a general description of it is given by the potential disclosing Party to the potential receiving Party and the potential receiving Party must agree in writing that it is Con:(idential Information.

2. Protection of Trade Secrets. During the course of their discussions, each Party has preciously disclosed and may disclose additional information to the other Party which constitutes "trade secrets" nnder applicable state law and other information regarding its business processes, operations and information (collectively, "Trade Secrets"). AU Trade Secrets shall be subject to the following efforts to protect their secrecy for so long as such information (in whatever form) remains in the possession of the receiving Party. The receiving Party shall hold all Trade Secrets in strict confidence, shall take all necessary precautions to protect the Trade Secrets, and shall not disclose Trade Secrets or any information deriv<:Xi therefrom to any person, except to the Parties' Representatives. Notwithstanding anything herein to the contrary, the Parties agree to notify all of such Parties' Representatives to whom any such information is communicated or disclosed of the terms of this Agreement in advance of such disclosure. TI1e Parties shall not disclose any Trade Secrets to any other person without the prior written consent of the providing Party and then only after such other person executes a copy of this Agreement or a sinlilar Agreement consented to by the providing Party. MSA and CHIEFS CONSULTING Trade Secrets under this Agreement, shall include, but not be limited to:

(a) unique formulas, processes or designs that whether or not patented or patentable, for delivering fmished or prospective products or services,

(b) any patents;

(c) any software code; and

(d) trademarks and trade names.

3. Noncovered Infonnation. Trade Secrets and Confidential Information, together with all information derived therefi·om, are referred to collectively as "Proprietary Information." Proprietary Information does not include information ("Noncovered Informatloii")WEicfi:ll'i) was known to the receiving Party, prior to being received from the other Party; (b) was generally available to the public or known in the industry in which CHIEFS CONSULTING and MSA operate at the tinle the information was disclosed; (c) becomes available to the public through no fuult of the receiving Party or any of such Parties' Representatives; (d) was received from a third

18461 v2


Party without breach of any duty of confidentiality by the receiving or disclosing Parties; or (e) is developed independently by the receiving Party without the use of any Proprietary Information.

4. Return of Proprietary Information. The Parties agree that, upon the written request of the other Party or upon termination of their relationship or any potential Transaction, whichevet is earlier (the "Termination Date"), they will surrender to the other Party any and all data, software, drawings, notes, papers, lists, books, records and other media and materials, and all copies thereof; which embody, contain, or otherwise disclose Proprietary Information transmitted to them by the other Pmty, except that each Party may retain (subject to the other provisions of this Agreement) fur archival purposes one (1) copy of the other Party's Confidential Information. Each Party agrees to use every effort to regain into its possession and return to the other Party any materials containing the other Party's Proprietary Information that may be in the hands of any of such Parties' Representatives or any third Party.

5. Legitimate Business Interest in Proprietary Information. The Parties agree that each other's Proprietary Infurmation is proprietary and confidential, and the each Party acknowledges that the unauthorized disclosure or use thereof would materially adversely affect the disclosing Party's business and competitive position. The Parties further agree that each Pm·ty's Proprietary Information: (i) is valuable, special and a unique asset of the disclosing Party; (ii) has provided and will hereafter provide the disclosing Party with a substantial competitive advantage in the operation of its business; and (iii) is a legitimate business interest of the disclosing Party. The Pmiies agree that th\l existence of these legitimate business interests justifies the need for the confidentiality and non-disclosure covenants set forth herein, and the restrictive covenants are reasonably neeessary to protect each Patty's legitimate business interests.

6. Restricted Use of Proprietary Information. Each Party will not, without the prior written consent of the other, use any of the Proprietary Information disclosed by the other for any purposes other than the potential Transaction and business relationships between the Patiies for which such information was disclosed. In consideration of the disclosure of the Proprietary Information, each Party agrees to receive and hold the Proprietary Information ofthe other Party in strict confidence and, except as contemplated herein, never disclose, disseminate, publish, reproduce or otherwise use, for the benefit of himself, itself or any other person, persons, partnership, association, corporation or other entity, the Proprietary Information in any manner whatsoever, other than in the course of the receiving Party's evaluation of the Transaction or as specifically authorized in writing by the disclosing Party. The receiving Party also agrees not to analyze, sell, show or give the Proprietary Information or documents relating thereto, or products made or derived from them, to any third Party (other than to its agents who agree to be bound by the terms hereof as described in this Agreement), and will not disclose the results of tests, experiments or studies conducted, or other information collected or produced, using the Proprietary Information. Further, the receiving Party shall in no manner engage in dialog, written or oral, with any third Party (other than with its agents who agree to be bound by the terms hereof as described in this Agreement) concerning the Proprietary Infonnation or any venture involving the disclosing Party, without the express prior written consent of the disclosing Party.

- 3 -38461 v2


7. Limited Internal Disclosure. Each Party agrees to institute and maintain security procedures to account for all copies of the Proprietary Information of the other Party and to limit the dissemination thereof within its own organization (which shall be deemed to include persons that control, are controlled by or are under common control with a Party hereto ("Affiliates")) to only those directors, officers and employees of the receiving Party or its Affiliates who need to have access to the Proprietary Information for the sole purpose of evaluating the Project and to the financial advisors, attorneys, accountants and other agents, if any, of the receiving Patty or its Affiliates engaged in connection with the Transaction. All of such directors, officers, employees and agents shall be infurmed of the terms of this Agreement and shall agree to be bound by the terms hereof to the same extent as if they were pa1ties hereto and the receiving Party shall be responsible for their observance of its terms. For the purpose of this Agreement, all of such directors, officers, employees and agents of the receiving Party or its Affiliates shall be deemed to collectively constitute the receiving Party.

8. Misappropriation. If any Party becomes aware that any of such Parties' Representatives has misappropriated, disclosed or misused any Proprietary Information (or intends to do so), such Party shall notify the other Party immediately and shall provide all reasonable assistance and cooperation to the other Pmty in its efforts to retrieve the Proprietary Information and to pursue remedies against such Parties' Representatives.

9. Required Disclosure. In the event that either Party receives a request to disclose any Proprietary Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction, such Party agrees: (i) to notifY the other Party immediately of the existence, terms and circumstances surrounding such request; (ii) to consult with the other Party on the advisability of taking legally available steps to resist or nanow such request; and (iii) if disclosure of such information is required, to exercise such Party's best efforts to obtain an order or other reliable assurance that confidential treatment will be given to as much of the Proprietary Information as possible.

10. Duration. Unless otherwise stated herein, the obligations under this Agreement shall remaio in effect from the date of this Agreement until two (2) years after the Termination Date and, with respect to Trade Secrets, for so long thereafter as the information remains a trade secret under applicable state law.

11. Nonsolicitation. The Parties acknowledge that io the course of this Agreement they will learn about the employees of the other and will develop working relationships with such persons, including, but without limitation, executives, salespeople, programmers and technical specialists. Each Party acknowledges the time and effort the other has spent and will spend to recruit and develop its employees in its business. Therefore, from the date of this Agreement until one (1) year after the Termination Date: (i) CIDEFS CONSULTING agrees not to encourage or solicit any employee of MSA to work for CHIEFS CONSULTING and not to encourage or solicit any employee of MSA to stop working for j\fSA, except that if any MSA employee approaches CHIEFS CONSULTING about employment with CHIEFS CONSULTING, without any solicitation or encouragement by CHIEFS CONSULTING, then CHIEFS CONSULTING may hire such employee; and (ii) MSA agrees not to encourage or

38461 v2


solicit any employee of CHIEFS CONSULTING to work for MSA and not to encourage or solicit any employee of CHIEFS CONSULTING to stop working for CHIEFS CONSULTING, except that if any CHIEFS CONSULTING employee approaches MSA about employment with MSA, without any solicitation or encouragement by MSA, then MSA may hire such employee.

12. Injunctive Relief. The Parties have advertised, solicited, rendered services, obtained customers, trained employees, contractors and consultants, and expended large sums of money in the research, development, and cultivation of their respective businesses, people and Proprietary Information. They acknowledge that any disclosure of such Proprietary Information or loss of personnel could substantially injure their businesses. The Pmties recognize that a remedy at law for any breach of this Agreement would necessarily be inadequate, and they thus stipulate that, in the event of any such breach, they shall be entitled to seek appropriate equitable relief, including, but not limited to, injunctive relief or specific performance, in addition to monetm·y damages. The Parties waive the posting of a bond or other security as a condition to the entry of any injunction or other equitable relief.

13. Remedies Cumulative. The rights and remedies ofthe Parties provided herein are intended to be in addition to any rights and remedies they may have under any state or federal law, including without limitation copyright, patent, trademark, trade n3!11e, trade secret and unfair competition laws.

14. Ownership of Proprietary Information .. Each Party agrees that any Proprietary Information revealed to the other Party (including any copies in whatever form) remains the exclusive property of the providing Pmiy, and that the providing Party retains all right, title and interest in its Proprietary Information, including ownership of all copyrights, patents, trademarks, trade names and trade secrets pertaining thereto. No license or similar rights of any kind shall be or be deemed to have been created or implied by this Agreement.

15. Disclaimer of Warranties. Except as may otherwise be set forth in a signed, written agreement between the Parties, neither Party makes any representation or warranty as to accuracy, completeness, condition, suitability or performance of the Proprietary Information (or any prui thereof), and the providing Party shall have no liability whatsoever to the other Party resulting fi·om its use of the Proprietary Information.

14. No Agreement on a Transaction. This Agreement does not represent, and should in no way imply, a commitment or an agreement to agree on the part of either Party to purchase the business, assets, products or services of the other Party hereto. No such commitment or agreement to purchase or to provide or develop products or services shall arise or be binding unless and until expressed in a written document signed by authorized representatives of both Parties. If any Party to this Agreement believes it inadvisable to proceed with a Transaction with the other Party, it will be under no obligation to proceed and its failure to do so will not create any obligation or liability to the other Party as a result thereof. ·

15. No Conflic(\p._g Obligations. Each Pmiy represents that it does not have an obligation to any third Party, whether express or implied, that would hamper, limit or interfere

- 5 • 3846! v2


with its ability to comply with the terms of this Agreement.

16. Entire Agreement. This Agreement contains the entire agreement of the Parties regarding the subject matter hereof, and supersedes and cancels any prior agreements among the Parties with respect to the subject matter hereof. Any amendment to this Agreement will not be effective unless it is in writing and signed by both Parties.

17. Fees and Expenses. Each Party hereto agrees to pay its own fees and expenses and all fees and expenses owed to its respective Parties' Representatives and otherwise relating to a possible Transaction, whether consutmnated or not or whether an agreement with respect thereto is entered into or not.

18. Venue and Jurisdiction. Each of the Parties hereto hereby irrevocably and unconditionally: (i) submits for itself and its property in any legal action or proceeding relating to this Agreement, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive jurisdiction of any Federal or State courts located in Orange County, Florida, and appellate courts from any thereof; (ii) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (iii) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at its address set forth in the recitals hereto or at such other address of which the other Party shall have been notified pursuant thereto; and (iv) agrees that nothing herein shall affect the right to effect service of process in any other mam1er permitted by law,

1.9. Attorney's Pees. If either Party initiates or is made a party to legal proceedings (whether judicial, administrative, declaratory, in arbitration, or othetwise) in cotmection with this Agreement, then the nonprevailing Party in those proceedings will pay the costs and attomey's fees, including the costs and attomey's fees of appellate proceedings, incurred by the prevailing Party. This obligation to pay attorney's fees and costs will apply also to settlements of disputes and to collection efforts.

20. Miscellaneous. Each of the provisions of this Agreement is severable li'om the others, and the unenforceability of any such provision or provisions shall not affect the validity or enforceability of any other provisions of this Agreement. If a court or arbitration panel determines that part or all of this Agreement is not valid or is unenforceable, the Parties agree and request that the Agreement be reformed to make as much of it valid and enforceable as possible. This Agreement shall be binding upon the Parties and their respective successors, heirs, representatives and assigns. This Agreement is not assignable by either Party without the prior written consent of the other. This Agreement shall be governed and construed in accordance with the laws of the State of Florida. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.

• 6. 38461 v2


20. Offer and Acceptance. This Agreement shall not be legally enforceable against any Party hereto unless it is signed by all Parties by October 23, 2013. If it is not signed by all Parties by such date, this Agreement shall be null and. void.

[Signatures on following page J

- 7 -38461 v2


IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date of this Agreement.

The MSA Holding Company, LLC

~ By:~----'---------Name: THEODORE CRANIAS Title: Manager

The MSA Card, LLC

By: C::::£7-Name: THEODORE CRANIAS Title: Manager

Date:

Date:

The MSA Card Technology Group, LLC

13'J~:-?3 Date: 1/) <-j J IJ Name: THEODORE CRANIAS Title: Manager

Chiefs Consulting Group, LLC

By:_.:__ _________ _

Name: KERRY AUGUSTINE Title: Chief Information Officer

"8 -38461 v2

Date: 9/24/2013 - --


CONTRACTOR CONFIDENTIALITY AND WORK PRODUCT AGREEMENT

As a condition of his/her engagement to provide services to The MSA Card, LLC ("MSA Card"), ADRIANO SILVA and his associated employees, agents, and any other associated personnel ("Contractor") agree to the following:

1. Confidentiality.

1.1 All Confidential Information (as defined in Sections 1.3 and 1.4), as well as other business information and documentation and the like to which Contractor has access during his or her engagement with MSA Card, both prior and subsequent to signing this Agreement, and all proprietary rights therein, are and shall remain the sole and exclusive property of MSA Card.

1.2 Except as may be required in the performance of the Contractor's duties with and for MSA Card, its subsidiaries, divisions or affiliates, Contractor will not at any time, whether during or following the termination of the Contractor's engagement with MSA Card, reveal to any person or organization any Confidential Information of MSA Card, and the Contractor will not use, attempt to use, or assist any third party in using any Confidential Information in any manner that may directly or indirectly injure or cause loss to MSA Card. Contractor agrees to comply with any and all procedures which MSA Card may adopt from time to time to preserve the confidentiality of tangible items relating to or containing Confidential Information.

1.3 "Confidential Information" shall mean information of any nature and in any form, whether disclosed prior or subsequent to signing this Agreement, which at the time or times concerned is not generally known to those persons engaged in business similar to that of MSA Card or to that contemplated by MSA Card or any subsidiary, division or affiliate of MSA Card, including, but not limited to, research and development projects and findings, plant design and layout, lists and other data regarding customers or suppliers and prospective customers or suppliers, accounting and financial records, computer programs, job plans, bidding specifications and practices, engineering data and drawings, equipment designs and specifications, Contractor Works (as defined in Section 2.1) shop plans and drawings, formulae, processes, personnel records and information, methods of manufacture, materials handling methods and procedures, costs and all pricing data, new device or product information and evaluations, know now, trade secrets, inventions, discoveries, and improvements, together with all copies of any of the foregoing.

1.4 "Confidential Information" shall not include information that is publicly known and generally utilized by persons in the Contractor's business, as well as the general skills and experience gained during the Contractor's engagement with MSA Card which Contractor could reasonably have been expected to acquire in similar engagements with another company. The phrase "publicly known" shall mean information which is in the public domain or publicly available through no fault of the Contractor or which can be proved to be independently developed without the use of Confidential Information. The burden of proving that information, skills and experience are not Confidential Information shall be on the party asserting such exclusion.

2. Contractor Works.

2.1 All works of authorship, inventions, discoveries and work product, whether or not patentable, and in whatever form, which are created, made or developed by Contractor in the course of performing services for MSA Card, whether prior or subsequent to the signing of this Agreement, and which relate in any way to the current or future business of MSA Card (the "Contractor Works"), including the work itself, all media in which each Contractor Work is rendered or embodied, and all proprietary rights therein, including, but not limited to, invention rights, whether sole or joint, all copyrights created by or arising in Contractor shall belong

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Page 1 of 2 (July 2012)


exclusively to MSA Card. Contractor agrees that, to the extent possible, the Contractor Work is a "work made for hire" for MSA Card, as such term is defined in 17 U.S.C. Sec. 101, and that all copyrights in such Contractor Work shall be, and are, owned solely, completely, and exclusively by MSA Card. To the extent not transferred to MSA Card as a result of the Contractor Work's status as a work made for hire, the Contractor hereby assigns, without further consideration, to MSA Card, its successors and assigns, all of Contractor's right, title, and interest in and to the Contractor Work.

2.2 No ideas, information, documentation, or other material submitted or used by Contractor in the performance of his or her duties for MSA Card will violate any copyright or trademark or infringe any proprietary rights of any third party. The Contractor will hold MSA Card harmless from and will defend any action alleging the infringement of such rights that may be brought against MSA Card by reason of MSA Card's use of any such ideas, information, documentation or other material provided by the Contractor, including without limitation, the Contractor Works.

2.3 Contractor represents and warrants (a) that all Contractor Works are the original work of the Contractor; (b) that Contractor is the sole author of the Contractor Work and has full power to grant the rights hereby conveyed to MSA Card; (c) that the Contractor Work contains no matter which is libelous or otherwise unlawful, or which infringes any right of privacy, proprietary right, copyright (whether statutory or common law) or other intellectual property right of any third party; and (d) that Contractor has not and will not hereafter enter into any agreement or understanding with any person, firm or corporation other than MSA Card for the rights in the Contractor Work.

3. Return of Confidential Information and Contractor Works. Upon request by MSA Card, and in any event upon termination of Contractor's engagement with MSA Card for whatever reason and irrespective of whether said termination of engagement is voluntary on the part of Contractor, Contractor will deliver to MSA Card all Confidential Information and Contractor Works (including all tangible embodiments thereof), as well as all property belonging to MSA Card, which is in Contractor's custody, possession or control.

4. Remedies. Contractor acknowledges and agrees that in the event of any breach of this agreement, in addition to any other remedies to which MSA Card may be entitled, including, but not limited to, money damages, MSA Card may seek injunctive or other equitable relief to enforce this agreement and to mitigate any damages.

5. Miscellaneous. In the event of any claims arising out of or in conjunction with this agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including fees and costs of appeals. This agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflicts of laws. This agreement represents the entire agreement of the parties with respect to the subject matter hereof. Any prior conversations, understandings, or oral agreements with regard to the subject matter hereof, not reduced to writing herein, are herby extinguished and of no force and effect.

The MSA Card, ~

By: C ::;Lc--lts: C · 0

Date: ??/lt.f /1 Y

J628JJ4 Yl 2017332 vl

ADRIANO SILVA

Signature

Date: t;~ M- I~.

Page 2 of 2 (July 2012)


Independent Contractor Agreement

This Independent Contractor Agreement ("Agreement") is made and entered into by the undersigned parties: Chiefs Consulting Grortp (known as the "Company") and Adriano Silva and Bits & Me, Inc. (known as the "Contractor").

In consideration of the promises, rights and obligations set forth below, the parties hereby agree as follows:

1. Term The term of this Agreement shall begin on May 15, 2014 and continue until completion of the MSA Card project, unless terminated earlier as set forth in this Agreement. The term of this Agreement may be extended by mutual agreement between th.e parties.

2. Services The Contractor will provide the following services:

The Contractor shall take direction from Kerry Augustine. Additional services or amendments to the services described above may be agreed upon between the parties.

3. Compensation Subject to providing the services as outlined above, the Contractor will be paid the sum of $248,000.for the base MSA Card sojhvare design through implementation, $28,250 for the lOS & Android mobile app design, plus fees quoted for work beyond scope of services. The Company will be invoiced on the submitted draw schedule for .vervices completed, with payment due immediately upon receipt of the invoice. Additional programming work for changes in scope will be billed as peiformed at quote/estimate rates.

4. Relationship The Contractor will provide the Contractor's services to the Company as an independent contractor and not as an employee.

Accordingly: • The Contractor agrees that the Company shall have no liability OJ' responsibility for the

withholding, collection or payment of any taxes, employment insurance premiums or Pension Plan contributions on any amounts paid by the Company to the Contractor or amounts paid by the Contractor to its employees or contractors. The Contractor also agrees to indemnify the Company from any and all claims in respect to the Company's failure to withhold and/or remit any taxes, employment insurance premiums or Pension Plan contributions.

•

•

The Contractor agrees that as an independent contractor, the Contractot will not be qualified to participate in or to receive any employee benefits that the Company may extend to its employees.

The Contractor is free to provide services to other clients, so.long as such other clients are not in competition with the Company and so long as there is no interference with the Contractor's contractual obligations to the Company.

EXHIBIT (! \=_,,<""-"'

l


• The Contractor has no authority to and will not exercise or hold itself out as having any authority to enter into or conclude any contract or to undertake any commitment or obligation fol', in the name of or on behalf of the Company,

5. Confidentiality and Intellectual Property The Contractor hereby acknowledges that it has read and agrees to be bound by the terms and conditions of the Company's confidentiality and proprietary information agreement attached hereto as Schedule "A" and which forms an integral part of this Agreemqnt. If the Contractor retains any employees or contractors of its own who will perform services hereunder, the Contractor shall ensure that such employees Ol' contractors execute an agreement no less protective of the Company's intellectual property and confidential information than the attached agreement.

The Contractor hereby represents and warrants to the Company that it is not party to any written or oral agreement with any third party that would restrict its ability to enter into this Agreement or the Confidentiality and Proprietary Information Agreement or to perform the Contractor's obligations hereunder and that the Contractor will not, by providing services to the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in favor of any third party.

The Contractor hereby agrees that, during the term of this Agreement and for one (l) year following the termination hereof, the Contractor will not (i) recruit, attempt to recruit or directly or indirectly participate in the recruitment of any Company employee or (ii) directly or indirectly solicit, attempt to solicit, canvass or inte1fere with any customer or supplier of the Company in a manner that conflicts with or interferes in the business of the Company as conducted with such customer or supplier.

6. Termination The independent contractor relationship contemplated by this Agreement is to conclude on yet to be determined completion date unless terminated earlier as set forth below. The Contractor agrees that no additional advance notice or fees in lieu of notice are required in the event the relationship terminates on June 30,2015.

The Contractor agrees that the Company may terminate this Agreement at any time without notice or any further payment if the Contractor is in breach of any of the terms of this Agreement.

The Company may terminate this Agreement at any time at its sole discretion, upon providing to the Contractor 30 calendar days advance written notice of its intention to do so or payment of fees in lieu thereof.

The Contractor may terminate this Agreement at any time at its sole discretion upon providing to the Company 30 calendar days notice of Contractor's intention to do so. Upon receipt of such notice the Company may waive notice in which event this Agreement shall terminate immediately.

7. Obligations Surviving Termination of this Agreement All obligations to preserve the Company's Confidential lnformation,'Tntellectual Property and other warranties and representations set forth herein shall survive the termination of this Agreement.

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8. Entire Agreement This Agreement, together with the Confidentiality and Proprietary Information Agreement, represents the entire agreement between the parties and the provisions of this Agreement shall supersede all prior oral and written commitments, contracts and understandings with respect to the subject matter of this Agreement. This Agreement may be amended only by mutual written agreement of the party.

9. Assignment This Agreement shall inure to the benefit of and shall be binding upon each party's successors and assigns. Neither party shall assign any right or obligation hereunder in wl10le or in part, without the prior written consent of the other party.

10. Governing Law and Principles. This Agreement shall be governed and construed in accordance with Florida law. If any provision in this Agreement is declared illegal or unenforceable, the provision will become void, leaving the remainder of this Agreement in full force and effect.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives, effective as of the day and ycf irst above written.

COMPANY1E :>8ENTATIVE CONTI . ~1~.·.r--·-By: By: - v' ·----

/· / N:u~ A funo Silva

Date: _$_p!Sf~~-Name: Kerry Augustine

Date: olj'~ dl I 7

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Schedule "A"

CONFIDENTIALITY AND PROPRIETARY INFORMATION AGREEMENT

In consideration of your engagement as an independent contractor or consultant with Chiefs Consulting Group, LLC (the "Company"), the undersigned (the "Consultant") agrees and covenants as follows:

I, Engagement with the Company as an independent contractor or consultant ("Engagement") will give the Consultant access to proprietary and confidential information belonging to the Company, its customers, its suppliers and others (the proprietary and confidential information is collectively referred to in this Agreement as "Confidential Information"). Confidential Information includes but is not limited to customer lists, marketing plans, proposals, contracts, technical and/or financial information, databases, software and know-how. All Confidential Information remains the confidential and proprietary information of the Company,

2. As referred to herein, the "Business of the Company" shall relate to the business of the Company as the same as is determined by the Owner of the Company from time to time.

3, The Consultant may in the course of the Consultant's Engagement with the Company conceive, develop or contribute to material or information related to the Business of the Company, including, without limitation, software, technical documentation, ideas, inventions (whether or not patentable), hardware, know-how, marketing plans, designs, techniques, documentation and records, regardless of the form or media, if any, on which such is stored (referred to in this Agreement as "Proprietary Property"). The Company shall exclusively own, and the Consultant does hereby assign to the Company, all Proprietary Property which the Consultant conceives, develops or contributes to in the course of the Consultant's Engagement with the Company and all intellectual and industrial property and other rights of any kind in or relating to the Proprietary Property, including but not limited to all copyright, patent, trade secret and trade-mark rights in or relating to the Propl'ietary Property. Material or information conceived, developed or contributed to by the Consultant outside work hours on the Company's premises or through the use of the Company's property and/or assets shall also be Proprietary Property and be governed by this Agreement if such material or information relates to the Business of the Company. The Consultant shall keep full and accurate records accessible at all times to the Company relating to all Proprietary Property and shall promptly disclose and deliver to the Company all Proprietary Property.

4. The Consultant shall, both during and after the Consultant's Engagement with the Company, keep all Confidential Information and Proprietary Property confidential and shall not use any of it except for the purpose of carrying out authorized activities on behalf of the Company. The Consultant may, however, use or disclose Confidential Information which:

(i) is or becomes public other than through a breach of this Agreement; (ii) is known to the Consultant prior to the date of this Agreement and with respect to

which the Consultant does not have any obligation of confidentiality; or (iii) is required to be disclosed by law, whether under an order of a court or

government tribunal or other legal process, provided that Consultant informs the

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Company of such requirement in sufficient time to allow the Company to avoid such disclosure by the Consultant.

The Consultant shall return or destroy. as directed by the Company, Confidential Information, Proprietary Property and any other Company property to the Company upon request by the Company at any time. The Consultant shall certify, by way of affidavit or statutory declaration, that all such Confidential Information, Proprietary Property or Company property has been returned or destroyed, as applicable.

5. The Consultant covenants and agrees not to make any unauthorized use whatsoever of or to bring onto the Company's premises for the purpose of making any unauthorized use whatsoever of any trade secrets, confidential information or proprietary property of any third party, including without limitation any trade-marks or copyrighted materials, during the course of the Consultant's Engagement with the Company.

6. At the reasonable request and at the sole expense of the Company, the Consultant shall do all reasonable acts necessary and sign all reasonable documentation necessary in order to ensme the Company's ownership of the Proprietary Property, the Company property and all intellectual and industrial property rights and other rights in the same, including but not limited to providing to the Company written assignments of all rights to the Company and any other documents required to enable the Company to document rights to and/or register patents, copyrights, trade-marks, industrial designs and such other protections as the Company considers advisable anywhere in the world.

7. The Consultant hereby irrevocably and unconditionally waives all moral rights the Consultant may now or in the future have in any Proprietary Property.

8. The Consultant agrees that the Consultant will, if requested from time to time by the Company, execute such further reasonable agreements as to confidentiality and proprietary rights as the Company's customers or suppliers reasonably require to protect confidential information or proprietary property.

9. Regardless of any changes in position, fees or otherwise, including, without limitation, termination of the Consultant's Engagement with the Company, unless otherwise stipulated pursuant to the terms hereof, the Consultant will continue to be subject to each of the terms and conditions of this Agreement and any other(s) executed pursuant to the preceding paragraph.

10. The Consultant agrees that the Consultant's sole and exclusive remedy for any breach by the Company of this Agreement will be limited to monetary damages and in case of any breach by the Company of this Agreement or any other Agreement between the Consultant and the Company, the Consultant will not make any claim in respect of any rights to or interest in any Confidential Information or Proprietary Property.

ll. The Consultant acknowledges that the services provided by the Consultant to the Company under this Agreement are unique. The Consultant further agrees that irreparable harm will be suffered by the Company in the event of the Consultant's breach or threatened breach of any of his or her obligations under this Agreement, and that the Company will be entitled to seek, in addition to any othet· rights and remedies that it may have at law or equity, a temporary or permanent injunction restraining the Consultant

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from engaging in or continuing any such breach hereof. Any claims asserted by the Consultant against the Company shall not constitute a defense in any injunction action, application or motion brought against the Consultant by the Company.

12. The laws of Orange County, Florida govern this Agreement and the parties agree to the non-exclusive jurisdiction of the courts of Orange County, Florida in relation to this Agreement.

13. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be deleted and the other provisions shall remain in effect.

IN WITNESS WHEREOF the Colllpany and the ~~~ulta1,1t have caused this Agreeljlent to be executed as of the .fJ{. day of 1'\ ~ , 20Lf

CONSU

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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

THE MSA CARD, LLC, a Florida limited liability company, Plaintiff, vs. Case No. 2015-CA-7552 Complex Business Litigation Court ADRIANO SILVA, Defendant. / ORDER GRANTING PLAINTIFF'S AGREED MOTION FOR LEAVE TO

FILE AN AMENDED COMPLAINT AND TO ADD PARTIES

THIS CAUSE came before this Court upon the Agreed Motion for Leave to

File an Amended Complaint and to Add Parties (the “Motion”) filed by Plaintiff,

THE MSA CARD, LLC (“Plaintiff”), and the Court having considered the Motion,

having acknowledged the agreement of counsel, and being otherwise fully advised

in the premises, it is hereby

ORDERED AND ADJUDGED:

1. The Motion to hereby GRANTED.

2. Plaintiff’s Amended Complaint attached as Exhibit A to the Motion,

is hereby deemed filed as of the date of this Order.


25075517 v1

3. Defendant, ADRIANO SILVA, who was previously served with a

summons and copy of the original Complaint, shall have ten (10) days from the

date of this order to serve a response to Plaintiff’s Amended Complaint.

DONE AND ORDERED, in Orlando, Orange County, Florida, this ___ day

of September, 2015.

_________________________________ LISA T. MUNYON Circuit Judge

With copies to: Howard S. Marks, Esq. Sheena A. Thakrar, Esq. Burr & Forman LLP 200 S. Orange Avenue, Suite 800 Orlando, FL 32801 [email protected] [email protected] Counsel for Plaintiff David H. Popper, Esq. South Milhausen, P.A. 1000 Legion Place, Suite 1200 Orlando, FL 32801 [email protected] Counsel for Defendant Silva


kerry augustine lawsuit at chief's consulting orlando, florida

Healthcare