CONFIDENTIAL AND PROPRIETARY

NONDISCLOSURE AND NONUSE AGREEMENT

THIS NONDISCLOSURE AND NONUSE AGREEMENT (this ?Agreement?) is made
and entered into this day of August, 2016, by and between The Big 12 Conference, Inc., a
Delaware nonpro?t corporation (the ?Conference?), and the University of Memphis (the

?University?).

WHEREAS, the University has initiated communications with the Conference through
which the University has expressed interest in being considered for possible admission as a
member in the Conference and part of a greater process wherein the Conference is evaluating
a number of candidates for possible admission as members in the Conference (the ??Project?); and

WHEREAS, in response to that expression of interest by the University, the Conference
desires to disclose certain Conference Con?dential Information (as defmed below) to the
University and the University desires to disclose certain University Con?dential Information (as
de?ned below), all subject to and conditioned upon the execution of this Agreement and
compliance by the University of the covenants, terms, and conditions contained herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration the receipt and suf?ciency of which
is hereby acknowledged, the Conference and the University hereby agree as follows:

1. Conference Con?dential Information. As used herein, ?Conference Con?dential
Information? shall mean all information or data, whether disclosed by the Conference to
the University (and any and all summaries or reports thereof or notes relating thereto) at
any time orally, in writing, or in electronic format, in any way related to the business,
?nances, prospects, or affairs of the Conference or member institutions (its ?Members?),
that is not generally available to the public as of the time of disclosure, including, without
limitation, any and all nonpublic information, data, ?nancial statements or budgets or
projections, contracts, reports, papers, analyses, compilations, records, notes, summaries,
discussions, studies, or other materials (in whatever form or media maintained); or the
Project or the participation in the Project of the University or any other person or entity,
including, without limitation, this Agreement or any other agreement or other documents
executed in connection with the Project (including the existence or terms of this Agreement
or any other agreements or documents), procedures, timetables, criteria, decisions, or
results of the Project as they may relate to the University or any other person or entity or
the University?s or any other person or entities participation therein (the ?Project
Information?).

2. University Con?dential Information. As used herein, ?University Con?dential
Information? shall mean any information or data disclosed by the University to the
Conference in writing (and any and all summaries or reports thereof or notes relating
thereto), or in electronic format in connection with the Project, relating to the University?s
business plans, assets, liabilities, properties, accounts, ?nancial information, or budgets
that are not generally available to the public, that is explicitly identi?ed, or marked in
writing, as being ?con?dential? at the time of such disclosure.

 

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3. Nondisclosure and Nonuse of Conference Con?dential Information. The
University acknowledges and agrees that the Conference Con?dential Information is of
great value to the Conference and that the restrictions and agreements contained in this
Agreement are reasonably necessary to protect the Conference Con?dential Information
and the goodwill of the Conference. Accordingly, the University shall, and shall cause all
of its directors, of?cers, employees, agents, independent contractors or other
representatives (the ?University Covered Persons?) to:

 

protect and safeguard the con?dentiality of the Conference Con?dential
Information with at least the same degree of care as the University would protect its own
con?dential information, but in no event with less than a commercially reasonable degree
of care;

not use the Conference Con?dential Information, or permit it to be accessed
or used, for any purpose other than in connection with the University?s participation in the
Project;

not disclose the Conference Con?dential Information to any person or
entity, except to the University?s representatives (the ?University Need to Know
Individuals?) who:

 

are listed on Schedule A attached hereto and who need to know the
Conference Con?dential Information to assist the University, or act on its behalf, in relation
to the Project or who are hereafter proposed by the University and who are approved by
the Conference in its sole discretion for addition to Schedule 

(ii) are informed by the University of the con?dential nature of the
Conference Con?dential Information and the obligations of the Conference hereunder and
agree to be bound by those covenants as if they were parties hereto; and

are subject to con?dentiality duties or obligations to the University
that are no less restrictive than the terms and conditions of this Agreement.

not make any public announcement or comment regarding the Conference
Con?dential Information or the Project; and

not make any statements or disclosures, public or private, with regard to, or
to disclose any information with respect to, the Project Information or the University?s
participation therein, or the status or the results of the Project during or after the conclusion
of the Project, other than to the University Need to Know Individuals.

The University acknowledges and agrees that it shall be responsible and liable for violation
of any provision of this Agreement by any of the University Covered Persons or the
University Need to Know Individuals as if such breach was caused by the University or
such persons were parties to this Agreement. 

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The Conference acknowledges and agrees that Certain University Covered Persons that are
not University Need to Know Individuals may be involved in the process of gathering and
compiling University Con?dential Information in connection with the Project without
violating this Agreement; provided, however, and for the avoidance of doubt, the
University acknowledges and agrees it will not share or distribute Conference Con?dential
Information (including, without limitation, the Project Information) to any such University
Covered Persons.

4. Nondisclosure of University Con?dential Information. The Conference
acknowledges and agrees that the University Con?dential Information is of great value to
the University and that the restrictions and agreements contained in this Agreement are
reasonably necessary to protect the University Con?dential Information and the goodwill
of the University. Accordingly, the Conference shall, and shall cause all of its Members
and its and their respective directors, regents, presidents, Chancellors, athletic directors,
of?cers, employees, agents, independent contractors or other representatives (the
?Conference Covered Persons?) to:

protect and safeguard the con?dentiality of the University Con?dential
Information with at least the same degree of care as the Conference would protect its own
con?dential information, but in no event with less than a commercially reasonable degree
of care;

not use the University Con?dential Information, or permit it to be accessed
or used, for any purpose other the Project; and

not disclose the University Con?dential Information to any person or entity,
except to the Conference Covered Persons and except in connection with any Conference
statement or disclosure, public or private, with regard to the Project Information or the
status of the Project during the Project.

The Conference acknowledges and agrees that it shall be responsible and liable for
violation of any provision of this Agreement by any of the Conference Covered Persons as
if such breach was caused by the Conference or such persons were parties to this
Agreement.

5. Required Disclosure. Any disclosure by the University or the University Need to
Know Individuals of any of the Conference Con?dential Information, or any disclosure by
the Conference of any of the University Con?dential Information (as applicable, the
?Disclosing pursuant to an applicable federal, state or local law or regulation,
including, without limitation, any federal or state ?Freedom of Information Act? requests
made under applicable law, or a valid order issued by a court or governmental agency of
competent jurisdiction (a ?Legal Obligation?), shall be subject to the terms of this Section.
Prior to making any such disclosure, the Disclosing Party will provide the other party with:
prompt written notice of such requirement so that the other party may seek a protective
order or other remedy; and reasonable assistance in opposing such disclosure or seeking
a protective order or other limitations on disclosure. If, after providing such notice and
assistance as required herein, the Disclosing Party remains subject to a Legal Obligation to
disclose any Conference Con?dential Information or University Con?dential Information,

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as applicable, the Disclosing Party shall disclose no more than that portion of the such
information which, on the advice of the Disclosing Party?s legal counsel, such Legal
Obligation speci?cally requires the Disclosing Party to disclose and, upon the other party?s
request, shall use commercially reasonable efforts to obtain assurances from the applicable
court or agency that such information will be afforded con?dential treatment.

6. Return or Destruction of Con?dential Information. At the Conference?s
request, the University shall return to the Conference all copies, whether in
written, electronic or other form or media, of the Conference Con?dential Information, or,
as requested, destroy all such copies and certify in writing to the Conference that such
Conference Con?dential Information has been destroyed. At the University?s request, the
Conference shall return to the University all copies, whether in written, electronic
or other form or media, of the University Con?dential Information, or, as requested,
destroy all such copies and certify in writing to the University that such University
Con?dential Information has been destroyed.

7. Equitable Remedies. The University acknowledges and agrees that, with respect
to the Conference Con?dential Information, and the Conference acknowledges and agrees
that, with respect to the University Con?dential Information, due to the unique nature of
the Conference Con?dential Information and University Con?dential Information, as
applicable, there may not be an adequate remedy at law for any breach of the obligations
of the University or the Conference, as applicable, under this Agreement and, therefore,
that upon any such breach or any threat thereof monetary damages, without the posting of
any bond or other security, the University or the Conference, as applicable, may be entitled
to appropriate equitable relief in addition to whatever remedies it might have at law,
including, without limitation, attorneys? fees, if it is the prevailing party, in connection with
any breach or enforcement of the obligations of the University or the Conference, as
applicable, hereunder or the unauthorized use or release of any such con?dential
information, and such relief may be granted without the necessity of proving actual
monetary damages unless required by law. The University further acknowledges and
agrees that any breach of this Agreement or other public disclosure by any of the University
Covered Persons or University Need to Know Individuals may lead the Conference to
immediately terminate and end all consideration and evaluation of the University as a
possible new member of the Conference.

8. Miscellaneous. The rights and obligations of the parties under this Agreement are
perpetual and shall survive after the end of the Project or the end of the University?s
participation therein, and shall inure to the bene?t of and be binding upon their permitted
successors and assigns. This Agreement and the agreements referred to herein or therein
contain the entire understanding of the parties hereto with regard to the subject matter
contained herein, and supersedes all prior agreements, understandings or intents between
the parties hereto. This Agreement may be amended, modi?ed or supplemented only by a
writing signed by the parties hereto. No waiver or any breach of this Agreement shall be
held to constitute a waiver of any other or subsequent breach. This Agreement may be
executed in one or more counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same agreement.

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[Signature page follows]

53906157.1

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year ?rst above written.

THE CONFERENCE:

The Big 12 Conference, Inc.

By:

 

Bob Commissioner

THE UNIVERSITY:

University of emphis

 

By:

 

M. David Rudd, President

Signature Page to Nondisclosure and Nonuse Agreement
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Schedule A

University Need to Know Individuals

M. David Rudd, President
Torn Bowen, Athletic Director
Melanie Murry, University Counsel

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