NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (“AGREEMENT”), dated as of _____ (the “EFFECTIVE DATE”), governs the disclosure of information by Spirit Realty L.P., a Delaware limited partnership and its affiliates (“COMPANY”) to ___________________________ (“RECIPIENT”) (each a “PARTY”, collectively, the “PARTIES”) for the purposes of exploring potential business relationships between Company and Recipient, and Recipient undertaking its obligations under any business relationship with Company (the “PURPOSE”).
1. As used herein, “Confidential Information” shall mean any and all information that Company provides Recipient, that is marked or otherwise identified at the time of disclosure as confidential or proprietary, or information that, by its nature, a reasonable party would consider to be confidential or proprietary, whether in graphic, electronic, written or oral form, and including, but not limited to financial information, trade secrets, and any other proprietary information, as well as any ideas, descriptions, works of authorship, models, know-how, processes, documents, and formulae related to the current, future, and proposed products and services of Company, and also any information concerning financial information, purchasing, customer lists, lead lists, investors, tenants, tenant financial information, employees, business and contractual relationships, business forecasts, business plans, personally-identifiable information, sales and merchandising or marketing plans of or related to Company and any information Company provides regarding third parties. Confidential Information does not include any information which (i) at the time of disclosure or thereafter is generally available to or known by the public (other than as a result of its disclosure by Recipient or its Representatives in breach of this Agreement), (ii) was available to Recipient on a non-confidential basis prior to disclosure by the Company, (iii) becomes available to Recipient on a non-confidential basis from a person who is not known by Recipient to be bound by a confidentiality agreement with the Company, or is not otherwise prohibited from transmitting the information to Recipient or (iv) was independently developed by or for Recipient without using Confidential Information.
2. Recipient agrees that at all times during the term of this Agreement it will hold in strict confidence and not disclose to any third party any Confidential Information except as approved in writing in advance by Company, and will use the Confidential Information for no purpose other than the Purpose, provided, however, that such Confidential Information may be disclosed to Recipient’s directors, officers, employees, attorneys, accountants, agents, advisors or other representatives (collectively, “REPRESENTATIVES”) who need to know such information solely in connection with the Purpose, further provided that all such Representatives shall be informed by Recipient of the confidential nature of such Confidential Information and shall either agree to be bound by the confidentiality provisions of this Agreement or are otherwise bound by confidential obligations at least as restrictive as those contained herein. Recipient shall be responsible for any breach of this Agreement by its Representatives. Notwithstanding any of the foregoing, Recipient shall not be in violation of this Section 2 with regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that Recipient provides Company with prior written notice of such disclosure (if not prohibited by law) in order to permit Company to seek confidential treatment of such information at Company’s sole cost and expense. Recipient covenants and agrees that neither it nor any of its Representatives will contact any third party with whom the Company or any of its subsidiaries has a business or other relationship (including, without limitation, any tenant, customer, supplier, or creditor of the Company) in connection with the Purpose without the Company’s prior written consent. Recipient shall immediately notify Company of any loss or unauthorized disclosure of the Confidential Information or violation of the preceding covenant.
3. All Confidential Information is provided “AS IS,” without any warranty of any kind. Recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting it any property rights, by license or otherwise, to any Confidential Information, or to any intellectual property right that has issued or that may issue, based on such Confidential Information.
4. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement and shall not be merged, modified, adapted, translated, decompiled, reverse engineered, disassembled or otherwise altered in any way by Recipient nor its Representatives. Any reproduction of any Confidential Information, including any notes made or retained by Recipient or its Representatives, shall remain the property of Company and shall contain any and all confidential or proprietary notices or legends which appear on the original.
5. This Agreement shall terminate upon the earlier of: (i) two (2) years after the Effective Date; or (ii) upon execution of a purchase and sale agreement (or similar documentation) between the Parties hereto regarding the Purpose which document shall then govern with respect to confidentiality; provided, however, any Confidential Information retained in accordance with the terms of this Agreement shall continue to be bound by the confidentiality and other obligations hereunder. Upon termination or expiration of the Agreement, or upon written request of Company, Recipient and its Representatives shall promptly return to the Company all documents and other tangible materials representing the Confidential Information and all copies thereof. Nothing herein shall be deemed to effect in any way the Recipient and its Representatives’ right to retain one copy of the Confidential Information to comply with professional or legal standards or requirements or in accordance with company record retention policies; provided, however, that any Confidential Information retained in accordance herewith shall continue to be governed by the terms of this Agreement.
6. Recipient acknowledges that it is (i) aware that the United States securities laws prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (ii) familiar with the Securities Exchange Act of 1934 (the “1934 Act”) and the rules and regulations promulgated thereunder, and agrees that it will neither use, nor fail to take any action to prohibit any third party (including its employees and representatives) to use, any Confidential Information in contravention of the 1934 Act or any such rules and regulations, including Rule 10b-5.
7. This Agreement shall be governed by and construed in accordance with the laws of Texas without reference to conflict of laws principles. This Agreement may not be amended except by a writing signed by both Parties. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
8. Recipient agrees that all disputes arising hereunder shall be adjudicated in the state and federal courts having jurisdiction over disputes arising in Dallas, Texas, and Recipient hereby agrees to consent to the personal jurisdiction of such courts. To the extent that a remedy at law for any breach of this Agreement would be inadequate, Company shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond, without proof of actual damage, and without prejudice to any other rights and remedies that Company may have for a breach of this Agreement. In the event of any action for breach of this Agreement, the prevailing Party shall have the right to seek recovery of all reasonable attorneys’ fees and other reasonable costs associated with such action.
9. Recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of Company, and no permitted assignment shall relieve Recipient of its obligations hereunder with respect to Confidential Information disclosed to it prior to the assignment. Any assignment without prior consent shall be null and void from the beginning.
10. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
11. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the addresses set forth at the end of this Agreement or such other address as either Party may specify in writing.
12. The Agreement sets forth the complete, exclusive and final statement of the agreement between the Parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the Parties regarding such subject matter.