NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT This NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (the “Agreement”) is entered into as of this ___ day of ____________, 2009 (the “Effective Date”) by and between Verizon Communications Inc., a California corporation (“Verizon”) and _________________________________, a ____________________________ (“Contracting Party”) (with each of Verizon and Contracting Party being referred to herein individually as a Party or collectively as the Parties). BACKGROUND WHEREAS, Verizon is the owner of certain real property which includes approximately consisting of approximately 295,000 square feet, commonly referred to as 1800 41st Street, Everett, WA. (the "Property"). Contracting Party has expressed an interest in acquiring the Property. WHEREAS, Verizon is the owner of certain confidential information relating to the Property (the “Verizon Information”). WHEREAS, Contracting Party desires to begin certain investigations regarding the Property, including the review of the Verizon Information prior to making a formal bid to purchase the Property (the "Agreed Purpose”). WHEREAS, in order to carry out the Agreed Purpose it may be necessary for Verizon to disclose Verizon Information to Contracting Party. For the purposes of this Agreement “Confidential Information” shall mean the Verizon Information. WHEREAS, this Agreement is intended to set forth the rights and obligations of the Parties with respect to Confidential Information both during the term of this Agreement and thereafter. NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein, and for other good and valuable consideration the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. DEFINITION OF CONFIDENTIAL INFORMATION. For the purposes of this Agreement “Confidential Information” means Verizon Information and any and all information which relates to Verizon Information in each case which is either disclosed in writing or which under the circumstances surrounding the disclosure should be treated as confidential regardless of whether such Verizon Information is disclosed in tangible form or retained in the intangible memory of a Party or its Representatives (as defined below). Confidential Information includes, for example and without limitation, knowledge that the Property is available for sale, all written information provided from Verizon to Contracting Party, such as, the letter of intent, offer form, preliminary title report, survey of the Property, copies of any existing leases, copy of the tax bill for the Property, copy of the operating expense history for the Property, the draft of the purchase
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and sale agreement for the Property, and any other material bearing or incorporating any information relating to the Verizon Information. 2. DISCLOSURE AND USE RESTRICTIONS.
2.1 The Contracting Party (the “Receiving Party”) shall maintain in confidence all Confidential Information that is disclosed to it by or acquired from Verizon (“the Disclosing Party”). The Receiving Party shall not, without the prior written consent of the other Party, and save as provided herein, directly or indirectly disclose the Confidential Information to any third party, or use the Confidential Information in whole or in part other than for the Agreed Purpose. 2.2 The Confidential Information shall be disclosed only to those employees, consultants, representatives or agents (collectively, the “Representatives”) of the Receiving Party who need to have access to the Confidential Information to enable the parties to achieve the Agreed Purpose. The Receiving Party shall not disclose and shall ensure that its Representatives do not disclose the Disclosing Party’s Confidential Information to any third party without the prior written consent of the Disclosing Party, and shall ensure that any such third party shall observe and be bound by the same obligations of confidentiality as those accepted by the Receiving Party under this Agreement and will ensure that such third party will only use the Confidential Information for the Agreed Purpose. 2.3 Each employee of the Receiving Party to whom any Confidential Information is disclosed shall be informed of the Receiving Party’s obligations under this Agreement and the Receiving Party shall insure that each such employee holds such Confidential Information confidential and does not use such Confidential Information for any purpose other than for the Agreed Purpose during the period of the Receiving Party’s obligations hereunder. 2.4 The Receiving Party and its Representatives shall also maintain in confidence all information concerning the circumstances of and the reasons for the appraisal of the Disclosing Party’s Confidential Information under this Agreement. 2.5 Upon written request, the Receiving Party, shall return to the Disclosing Party all documents provided by the Disclosing Party and all copies thereof and destroy all documents created by or on behalf of the Receiving Party which incorporate any of the Confidential Information provided by or acquired from the Disclosing Party or any conclusions reached by the Receiving Party based on such Confidential Information, except for one copy to be retained solely to ensure compliance with this Agreement. 3. EXCEPTIONS. The obligations contained in Section 2 of this Agreement shall not apply to Confidential Information which: 3.1 at the time of disclosure by or acquisition from the Disclosing Party is already in the possession of the Receiving Party and can be shown to be so by written evidence; or
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3.2 at the time of disclosure by or acquisition from the Disclosing Party is, or thereafter becomes through no fault of the Receiving Party, public knowledge and can be shown to be so by written evidence; or 3.3 after disclosure by or acquisition from the Disclosing Party is lawfully received by the Receiving Party from a third party having a lawful right to disclose the same; or 3.4 is independently developed by any employee of either party who has not had access to the Confidential Information of the other party and which can be established by documentary evidence; or 3.5 is required by any government or regulatory authority or court entitled by law to disclosure of the same, or which is required by law to be disclosed, treated or used by either party pursuant to a binding legal obligation involuntarily incurred by that party, provided that the Receiving Party promptly notifies the Disclosing Party when such requirement to disclose has arisen to enable the Disclosing Party to seek an appropriate protective order and to make known to the said governmental or regulatory authority or court the Confidential nature of the Confidential Information and to make any applicable claim of confidentiality in respect thereof. 4. CONFIDENTIALITY MEASURES.
4.1 To secure the confidentiality attaching to the Confidential Information, the Receiving Party shall take reasonable and appropriate measures to safeguard it against theft, loss or negligent disclosure to others, including but not limited to the following: 4.1.1 keep separate all Confidential Information of the Disclosing Party and all information generated by it based thereon from all its documents and other records; 4.1.2 keep all documents and any other material bearing or incorporating any of the Confidential Information of the Disclosing Party at its usual place of business; 4.1.3 take all reasonable and appropriate measures (including, but not limited to, the same measures as it takes for its own confidential information) to ensure that, any of the Confidential Information of the Disclosing Party used, reproduced, transformed or stored in an externally accessible computer or electronic information retrieval system is protected from unauthorized access through the use of firewalls and other available security systems; 4.1.4 ensure that each of its Representatives having access to the Confidential Information of the Disclosing Party undertakes to maintain such Confidential Information as confidential, and shall take such steps as may be reasonably desirable to enforce such obligations; 4.1.5 make copies of the Confidential Information of the Disclosing Party only to the extent that the same is strictly required for the Agreed Purpose; and -3\4519797.1
4.1.6 on request of the Disclosing Party made at any time deliver up to the Disclosing Party all documents and other material, including copies, in its possession, custody or control that bear or incorporate any part of the Confidential Information and destroy any conclusions reached by it which are based on the Confidential Information. 4.2 The Receiving Party agrees to notify the Disclosing Party promptly of the date of, and the circumstances involved in the loss or unauthorized disclosure, if such should occur, of any Confidential Information and, should the Disclosing Party so request, promptly return to the Disclosing Party all remaining Confidential Information. 5. ASSIGNMENT. This Agreement is personal to the Parties hereto and the rights and obligations hereunder may not be assigned in whole or in part by either Party without the prior written consent of the other (such consent not to be unreasonably withheld or delayed). 6. LICENSE. This Agreement shall not be construed to grant to the Receiving Party any license or other rights in respect of the Disclosing Party’s Information except in order to carry out the Agreed Purpose. 7. TERM. The obligations contained in this Agreement shall remain in force for a period of five (5) years from the date of disclosure. 8. RELATIONSHIP. The parties do not intend that any agency or partnership relationship be created by this Agreement. 9. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. 10. COUNTERPARTS. This Agreement may be executed in multiple, identical counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument. 11. ATTORNEYS' FEES. If any action or proceeding is brought to interpret or enforce this Agreement or any of the relations between the parties in any way arising out of or in connection with their obligations hereunder, regardless of whether such action or proceeding is prosecuted to judgment and in addition to any other remedy, the non-prevailing party shall pay to the prevailing party the reasonable attorneys’ fees and costs incurred by the prevailing party.
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IN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement. VERIZON COMMUNICATIONS INC: CONTRACTING PARTY:
By: _______________________________ Name: _____________________________ Title:_______________________________
By: _______________________________ Name: _____________________________ Title:_______________________________
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