NDA: Sinclair - San Diego, CA
PRIVATE AND CONFIDENTIAL
Corner Realty, LLC, and its affiliates (“Corner Realty”) are providing you (the “Recipient”) this Confidentiality Agreement, dated as of the date set forth below (this "Agreement"), in connection with your request to review certain non-public and confidential information ("Confidential Information") regarding 12033 Scripps Summit Drive, San Diego, CA 92131, and one or more of its subsidiaries, affiliated companies, shareholders, members, or owners (collectively the "Company"), and your interest in a potential negotiated transaction with, or acquisition of certain assets of, the Company (the "Transaction"). In consideration of such information as may be furnished to Recipient hereunder from time to time, Recipient agrees to comply with this Agreement. Further, Recipient will direct its owners, members, stockholders, directors, officers, employees, partners, affiliates, agents, advisors, and other representatives (including financing sources, unless approved in writing by the Company) (collectively, "Recipient’s Representatives"), to comply with this Agreement.
All Confidential Information furnished to Recipient, or any of Recipient’s Representatives, by the Company or any of the Company's owners, stockholders, directors, officers, employees, affiliates, agents, advisors, or other representatives, including but not limited to Corner Realty (collectively, the "Company’s Representatives"), relating to the Company and its business (including but not limited to its assets and operations, intellectual property, pricing strategy, customer lists, and the counterparties to its Branded Marketer Agreements) or the Transaction, whether furnished before or after the date of this Agreement, irrespective of the form of communication, and regardless of whether marked or otherwise identified as confidential, shall collectively constitute "Evaluation Material" for purposes hereof. Evaluation Material also includes any information that may be derived from tours of the Company facilities, meetings with the Company employees, or review of the Company's books, records, products, technology, software, hardware, and any drawing, schematic diagrams, or other technical information. Evaluation Material also includes, but is not limited to, all notes, analyses, studies, and other documents prepared by Recipient or Recipient’s Representatives. Recipient and Recipient’s Representatives are collectively referred to herein as the "Receiving Group."
Evaluation Material shall not include information that Recipient can demonstrate was: (i) in the public domain before disclosure to Recipient hereunder, or that becomes part of the public domain after disclosure to Recipient hereunder, through no action or inaction of any member of the Receiving Group; (ii) received by Recipient on a non-confidential basis from a third party (other than from the Company or any Company Representative) not prohibited from disclosing such information to Recipient by a legal, contractual, or fiduciary obligation to the Company or another person or entity; or (iii) independently acquired or developed by Recipient without Recipient or any of Recipient’s Representatives breaching this Agreement.
Recipient agrees that Receiving Group (a) shall use the Evaluation Material strictly in connection with the evaluation or negotiation of the Transaction and not for competitive purposes whatsoever; (b) shall at all times keep the Evaluation Material strictly confidential, using at least the same degree of care that the Receiving Group uses to safeguard its own highly confidential information and in no event with less than a reasonable degree of care; and (c) shall not, without the Company's prior written consent, disclose any Evaluation Material in any manner whatsoever to any other person or entity; provided, however, that Recipient may disclose the Evaluation Material to Recipient’s Representatives who: (i) have a good-faith need to know the Evaluation Material for the purpose of evaluating or negotiating the Transaction; (ii) are informed by Recipient of the confidential nature of the Evaluation Material and the contents of this Agreement; and (iii) agree in writing to be bound by this Agreement. Recipient will cause Recipient’s Representatives to comply with this Agreement, and Recipient will be responsible for any breach of this Agreement attributable to any of Recipient’s Representatives (it being understood that such responsibility will be in addition to and not by way of limitation of any right or remedy the Company may have against any of Recipient’s Representatives with respect to any such breach).
In the event that Recipient or any of Recipient’s Representatives are requested or required by deposition, interrogatory, request for documents, subpoena, or similar legal process to disclose any of the Evaluation Material, and Recipient or any of Recipient’s Representatives are advised by legal counsel that they must disclose such information, Recipient shall, to the extent permitted under applicable law, provide the Company with prompt oral and written notice of such request or requirement and of any Evaluation Material proposed to be disclosed, so that the Company may: (a) seek a protective order or other appropriate remedy; or (b) in the Company's sole discretion, waive compliance with this Agreement as to that particular request or requirement. Recipient agrees to cooperate with the Company in its efforts to obtain such remedies. In the event that such protective order or other remedy is not obtained or that the Company waives compliance with this Agreement as to a particular request or requirement, Recipient and/or Recipient’s Representative(s) will furnish only that portion of the Evaluation Material as, pursuant to the reasonable advice of counsel, is required to be disclosed, and the persons or entities making such disclosure will exercise best efforts to obtain reliable assurances that the information disclosed will be held confidential.
Neither Company, Recipient nor any of Recipient’s Representatives will, without the prior written consent of the other party, disclose (except as required by applicable law or deposition, interrogatory, request for documents, subpoena or similar legal process in compliance with the preceding paragraph) to any person (other than such parties Representatives who are actively and directly participating in evaluating or negotiating the Transaction), (a) the existence or the terms of this agreement; (b) any information about the Transaction or the terms, conditions or other facts relating thereto, including the fact that discussions are taking place with respect to the Transaction or the status thereof, or (c) the fact that the Evaluation material exists or has been made available to you or your Representatives. The term “person” as used in this agreement will be interpreted broadly to include the news media and any corporation, group, partnership, limited liability company or other entity or individual.
At any time upon the Company's request, Recipient will, at its own expense (and will cause Recipient’s Representatives to, at their own expense): (a) promptly deliver to the Company all Evaluation Material other than the Evaluation Material described in clause (c) of this paragraph; (b) not retain any copies, extracts, or other reproductions, in whole or in part, of such Evaluation Material; and (c) destroy all documents, memoranda, notes, and other writings whatsoever (including all copies, extracts, and other reproductions) prepared by any member of the Receiving Group that are based on the information contained in the Evaluation Material. Recipient may keep the Evaluation Material in an archived computer system backup made in accordance with Recipient’s reasonable disaster-recovery procedures, document-retention policies, or regulatory-compliance policies provided any such retained Evaluation Material is only accessible by bona fide legal, compliance, or IT personnel. However, the return or destruction of the Evaluation Material will not relieve the Recipient or any of Recipient’s Representatives of their respective obligations hereunder. The Receiving Group will continue to be bound by this Agreement until its term expires and, in the case of any Evaluation Material that is retained, for as long as such Evaluation Material is retained.
ALL EVALUATION MATERIAL IS PROVIDED "AS IS." RECIPIENT ACKNOWLEDGES THAT THE COMPANY AND THE COMPANY’S REPRESENTATIVES MAKE NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF THE EVALUATION MATERIAL AND THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATION OR WARRANTY. RECIPIENT AGREES (ON BEHALF OF ITSELF AND RECIPIENT’S REPRESENTATIVES) THAT THE COMPANY AND THE COMPANY’S REPRESENTATIVES SHALL HAVE NO LIABILITY TO RECIPIENT OR RECIPIENT’S REPRESENTATIVES ARISING FROM OR IN CONNECTION WITH THE USE OF OR RELIANCE ON THE EVALUATION MATERIAL (OR FOR ANY ERROR THEREIN OR OMISSION THEREFROM), EXCEPT IN ACCORDANCE WITH SUCH REPRESENTATIONS OR WARRANTIES AS MAY BE MADE IN A BINDING, DEFINITIVE WRITTEN AGREEMENT EXECUTED BY THE PARTIES TO SUCH AGREEMENT FOR THE CONSUMMATION OF THE TRANSACTION UPON SPECIFIC TERMS (A "TRANSACTION AGREEMENT”).
Recipient agrees that: (a) all inquiries, requests for information, and other communications with the Company shall be made only through representatives of Corner Realty, unless otherwise specified by Corner Realty or the Company in writing; (b) Recipient will not contact any owner, stockholder, director, manager, officer, employee, customer, supplier, contractor, consultant, agent, affiliate, or representative of the Company with respect to the Transaction or the Evaluation Material, or for the purpose of obtaining information for use in evaluating the Transaction, except through Corner Realty (or any other person or entity authorized in writing by the Company); and (c) Recipient will not discuss (i) the existence of this Agreement or the fact that Recipient has requested or received information from Company, (ii) any matters relating to the Transaction, including the fact that any investigations, discussions, or negotiations are taking place concerning the Transaction and any of the terms, conditions, or other facts with respect to the Transaction, including the status thereof, (iii) any potential staffing decisions which could be made with respect to the Company after the closing of the Transaction, or (iv) any matters relating to the Evaluation Material until after the Transaction is consummated, without the prior written consent of the authorized Company Representative listed on the signature page of this Agreement.
Recipient agrees not to, and agrees to cause Recipient’s Representatives not to, directly, hire or solicit for employment any: (a) employees of the Company to whom Recipient or Recipient’s Representatives may be introduced or with whom Recipient or Recipient’s Representatives otherwise have contact in the course of reviewing the Evaluation Material or evaluating, negotiating, or consummating the Transaction; or (b) executives or managers of the Company, without the Company's prior written consent; provided that a general solicitation for employees to the public (including through the use of employment agencies) not specifically directed at employees, managers, executives, or independent contractors of the Company will not constitute a breach of this paragraph. The parties agree that any such person hired by Recipient or any of Recipient’s Representatives without breach of this paragraph will not be involved in the Transaction in any manner or at any stage whatsoever, whether directly or indirectly.
Recipient agrees not to, and agrees to cause Recipient’s Representatives not to, directly solicit for any business transactions or sales, in a manner that would adversely affect the Company, any customer, supplier, contractor, consultant, agent, or representative of the Company to whom Recipient or Recipient’s Representatives may be introduced or with whom Recipient or Recipient’s Representatives otherwise have contact in the course of reviewing the Evaluation Material or evaluating, negotiating, or consummating the Transaction without the Company's prior written consent; provided that a general solicitation to the public for any business transaction or sales that is not specifically directed at any customer, supplier, contractor, consultant, agent, or representative of the Company will not constitute a breach of this paragraph. Recipient agrees that the nature and period of the restrictions imposed by this paragraph and the immediately preceding paragraph are fair, reasonable, and reasonably necessary to protect the business interests of the Company.
Recipient agrees that the Company would be irreparably and immediately harmed by, and money damages would not be a sufficient remedy for, any breach of this Agreement by Recipient or any of Recipient’s Representatives. Accordingly, in addition to all other available legal or equitable remedies, the Company will be entitled, without proof of actual damages, to equitable relief, including but not limited to injunctive relief and specific performance, in the event of any breach or threatened breach of this Agreement. Recipient hereby waives and shall use best efforts to cause Recipient’s Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedies. Recipient shall indemnify the Company for, and hold the Company harmless against, any and all liabilities, costs, expenses (including, without limitation, reasonable attorneys' fees), losses, damages, and claims arising out of or in connection with: (a) Recipient’s, or any of Recipient’s Representatives', breach of this Agreement; and/or (b) action by the Company to enforce this Agreement or its rights hereunder. The remedies described in this paragraph are not the Company's exclusive remedies for breach of this Agreement but are in addition to all other remedies available to the Company at law or equity.
Recipient will notify the Company immediately upon discovery of any unauthorized use or disclosure of the Evaluation Material, or any other breach of this Agreement by Recipient or any of Recipient’s Representatives, and will use its commercially reasonable efforts to cooperate with the Company to assist and aid the Company to (a) regain possession of the Evaluation Material so used or disclosed, (b) prevent its continued unauthorized use or disclosure, and (c) otherwise remedy or mitigate the adverse impact or consequences that result or may result therefrom.
This Agreement embodies the entire understanding and agreement between the parties with respect to the Evaluation Material and all other matters addressed herein, and supersedes any and all prior understandings and agreements, if any, between the parties regarding the same subject matter. Recipient may not assign any of its rights or delegate any of its obligations hereunder without the Company’s prior written consent.
This Agreement is not intended to, and shall not be construed to, impose any obligation on the Company to consummate any Transaction, provide any information (including the Evaluation Material), conduct or continue negotiations with respect to any Transaction or otherwise, or to enter into a Transaction Agreement. No contract or agreement providing for the Transaction, and no legal obligation of any kind whatsoever relating to the Transaction, except as to the Evaluation Material and the other matters specifically agreed to herein, will be deemed to exist as a consequence of entering into this Agreement. Either party may terminate discussions or negotiations regarding a possible Transaction at any time without any liability, except as agreed to herein, unless and until a binding commitment agreement or Transaction Agreement has been executed and delivered. Recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any rights, title, or interest, by license or otherwise, to any Evaluation Material disclosed pursuant to this Agreement.
THIS AGREEMENT IS GOVERNED BY AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES OR CHOICE OF LAW RULES. ALL PROCEEDINGS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN STATE COURT IN THE COUNTY IN WHICH THE COMPANY IS HEADQUARTERED. CONSENT TO PERSONAL JURISDICTION IN ANY SUCH ACTION BROUGHT IN ANY SUCH COURT AND CONSENT TO SERVICE OF PROCESS BY U.S. REGISTERED OR CERTIFIED MAIL IS HEREBY UNCONDITIONALLY AND IRREVOCABLY GRANTED, AND A WAIVER OF ANY OBJECTION TO VENUE IN ANY SUCH COURT OR TO ANY CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM IS HEREBY UNCONDITIONALLY AND IRREVOCABLY GRANTED.
The Company does not intend to disclose any legally privileged information. To the extent that any Evaluation Material includes information or materials subject to the attorney-client privilege, the Company is not waiving, and will not be deemed to have waived or diminished, its attorney work-product protections, attorney-client privileges, or other similar protections and privileges as a result of disclosing any Evaluation Material (including but not limited to Evaluation Material related to pending or threatened litigation) to Recipient or any of Recipient’s Representatives.
The Company’s disclosure(s) to Recipient hereunder are non-exclusive and the Company may disclose information to any other persons or entities at any time.
This Agreement will commence as of the date below and will remain in effect for two (2) years therefrom; provided, however that the confidentiality obligations with regard to any Evaluation Material that is a trade secret shall remain in effect until, if ever, such Evaluation Material ceases to be a trade secret under applicable law and the confidentiality obligations with regard to any Evaluation Material which is retained pursuant to the terms of this Agreement shall remain in effect as long as such information is retained.
This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same agreement between the parties. Delivery of an executed counterpart of this Agreement, whether by facsimile, electronic mail in portable document format (.pdf), or by any other electronic means has the same effect as delivery of an executed original. No failure or delay by the Company in exercising any right or remedy hereunder will operate as a waiver of such right or remedy, and no single or partial exercise thereof will preclude any other or further exercise of such right or remedy. If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction, in whole or in part, such provision or portion of this Agreement will be limited, deleted, or otherwise modified to the minimum extent necessary so that the resulting provision or portion of this Agreement remains in full force and effect as so limited, deleted, or otherwise modified.
This Agreement was drafted jointly by the parties and will not be construed against either party based on the drafting hereof.
If Recipient agrees with the foregoing, please so indicate by signing below and returning the signed copy of this agreement to Corner Realty.
Accepted and agreed to as of:
Very truly yours,
Authorized Company Representative:
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Document Name: NDA: Sinclair - San Diego, CA
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