This NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made and entered into as of this ____ day of _____, 2022 (the “Effective Date”), by and between Nobis Rehabilitation Partners, LLC, a Texas limited liability company (“Nobis”), and ______________________, a ________________ ________________________________ (“Recipient”) (Nobis and Recipient are each a “Party” and collectively referred to as the “Parties”).
WHEREAS, in connection with the potential investment in Nobis to develop, construct and operate rehabilitation hospitals or medical facilities to be owned by and/or affiliated with Nobis (the “Arrangement”), Recipient may obtain or have access to certain Confidential Information (as defined below) of Nobis; and
WHEREAS, the Parties desire to enter into this Agreement to ensure adequate privacy and security of such Confidential Information.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1. “Confidential Information” shall mean all information Nobis considers confidential and/or proprietary including, but not limited to, technical data (including research, development, procedures, designs, and know-how), business, engineering, construction plans, financial and marketing plans, including pricing, technology, trade secrets, information on strategic relationships, alliances and patient relationships, patient and supplier data, patient lists, referring physician lists, employee names and information, and other technical and business information (in whatever form, whether written, oral, electronic, by inspection or otherwise) furnished by Nobis or its Representatives (as defined below) to Recipient or its Representatives relating to Nobis, and any analyses, compilations, studies, documents, notes or other materials (in whatever form, whether written, oral or otherwise) prepared by Recipient or its Representatives containing or based in whole or in part upon such data (including research, development, procedures, designs, and know-how).
Confidential Information excludes any information or data which (i) is (or later becomes) available to the public through no breach of this Agreement, (ii) at the time of disclosure to Recipient was previously known or otherwise in the possession of Recipient without any obligation to hold it in confidence, (iii) is received from a third party free to disclose such information without restriction, (iv) is independently developed by Recipient, or (v) is approved for release by written authorization of Nobis (but only to the extent of and subject to such conditions as may be imposed in such written authorization).
2. Non-Disclosure and Non-Use Obligations. Recipient agrees that the Confidential Information will be used solely for the purpose of evaluating the Arrangement. Recipient will give such Confidential Information at least the same degree of confidential treatment that an ordinary prudent business person would afford to his or her own confidential proprietary information and trade secrets. Except as otherwise provided in this Agreement, Recipient also agrees not to disclose any of the Confidential Information to any third party without the prior written consent of Nobis, even if the Confidential Information was provided to Recipient prior to the execution of this Agreement; provided, however, that the Confidential Information may be disclosed to Recipient’s Representatives who need to know such information for the purposes contemplated hereunder and who agree in writing to keep such information confidential and to be bound by this Agreement to the same extent as if they were parties to this Agreement. Recipient acknowledges that it is responsible for the unauthorized use or disclosure of the Confidential Information by Recipient’s Representatives or others who obtain access to the Confidential Information from Recipient or its Representatives. For purposes of this Agreement, “Representatives” of a person shall mean such person’s affiliates, directors, managers, officers, employees, shareholders, members, general partners, agents, legal counsel, accountants, consultants and financial advisors, as well as any “Representative” of any of the foregoing.
3. Required Disclosure. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, Recipient agrees to (i) provide Nobis with prompt notice of such request(s) and the information or documents requested thereby so as to enable Nobis to timely consider seeking to obtain an appropriate protective order, and (ii) consult with Nobis on the advisability of taking legally available steps to resist or narrow such request. Recipient further agrees that if, in the absence of a protective order or the receipt of a waiver hereunder, Recipient is nonetheless, in the written opinion of Recipient’s counsel, compelled to disclose Confidential Information to any court or governmental administrative authority or else stand liable for contempt or to suffer other material censure or penalty, such information may be disclosed to such court governmental authority without liability hereunder; provided, however, that Recipient shall give to Nobis written notice of the information to be so disclosed before the information is disclosed, and a copy of all such information.
4. Return of Confidential Information. Upon termination of negotiations related to the Arrangement, or upon consummation of the Arrangement, as applicable, Recipient will promptly deliver to Nobis all copies of all Confidential Information furnished to Recipient or its Representatives, including without limitation all PHI.
5. Ownership of Information. All Confidential Information, unless otherwise specified in writing, shall remain the property of Nobis.
6. Accuracy of Information. Recipient acknowledges and agrees that (i) Nobis makes no representation or warranty, express or implied, in connection with this Agreement or the Arrangement regarding the accuracy or completeness of any information, and (ii) Nobis shall have no liability resulting from Recipient’s use of Confidential Information, except and to the extent express representations or warranties are made with respect thereto in a definitive written agreement, when and if executed and delivered by the Parties.
7. Breach; Specific Performance. The Parties recognize and acknowledge the value and confidential nature of the Confidential Information and the irreparable harm that could result to Nobis if its Confidential Information is disclosed to any third party and agree that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient or its Representatives. Accordingly, in addition to all other remedies, Nobis shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and Recipient further agrees to waive, and to use its best efforts to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.
8. Term. The term of this Agreement shall commence as of Effective Date and continue for a period of one (1) year (“Term”). A Party may terminate this Agreement and the discussions with respect to the Arrangement at any time upon written notice to the other Party. The covenants and obligations of Recipient under Section 2 (“Non-Disclosure and Non-Use Obligations”) shall survive the termination or expiration of this Agreement.
9. Indemnification. Recipient shall indemnify, hold harmless and defend Nobis from and against any and all claims, losses, liabilities, costs and other expenses resulting from, or relating to, the acts or omissions of Recipient and contractors and Representatives of Recipient in connection with the representations, duties, and obligations of Recipient under this Agreement.
10. No Obligations. This Agreement does not require or compel Nobis to disclose any Confidential Information to Recipient. The Parties understand and agree that, unless and until a definitive agreement (which does not include an executed letter of intent or other preliminary written agreement in principle) has been executed and delivered, no contract or agreement providing for an Arrangement between the Parties shall be deemed to exist, and neither Party will be under any obligation to negotiate the terms of the Arrangement, by virtue of this or any written or oral expression thereof, except, in the case of this Agreement, for the matters expressly agreed to herein. Each Party reserves the right, in its sole and absolute discretion, to reject any or all proposals, to decline to furnish further information and to terminate discussions and negotiations with the other Party at any time. The exercise by a Party of these rights shall not affect the enforceability of any provision of this Agreement.
11. Miscellaneous. No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any further exercise of any right, power or privilege under this Agreement. In the event any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement shall not in any way be affected or impaired thereby. This Agreement and any of the rights or obligations hereunder may not be assigned by Recipient without the prior written consent of Nobis. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to choice of law doctrines. The Parties hereto irrevocably agree that all actions or proceedings in any way, manner or respect, arising out of or from or related to this Agreement shall be subject to the exclusive jurisdiction of the Texas state and federal courts covering Collin County, Texas. Each Party hereby consents and submits to personal jurisdiction in the State of Texas and waives any rights it may have to transfer the venue of any such action or proceeding. The prevailing Party or Parties in any litigation arising out of or from this Agreement shall be entitled to recover from the non-prevailing Party or Parties all costs and expenses reasonably incurred in litigating such action, including without limitation, reasonable attorneys’ fees and court costs. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts executed and delivered by facsimile or electronic mail shall be effective as originals.
12. Notices. Any notices or communications to be given under this Agreement by a Party to another Party shall be deemed to have been duly given if given in writing and (i) personally delivered, (ii) sent by nationally recognized overnight courier, (iii) sent by facsimile (with electronic confirmation), (iv) sent by mail, certified, postage prepaid with return receipt requested, or (v) sent by electronic mail (with confirmation through one of the methods specified in (i) through (iv) above) in each case, at the address for such other Party set forth below:
If to Nobis:
Nobis Rehabilitation Partners, LLC
450 Century Parkway, Suite 220
Allen, Texas 75013-8044
Attention: Chester Crouch
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