1. THIS CONFIDENTIALITY AGREEMENT is made the …………… day of
2013
BETWEEN:
(1)
NEWPOINT INVESTMENT HOLDINGS LIMITED, a company incorporated in England and
Wales with registered office at Charles House, 5-11 Regent Street, London SW1Y 4LR
("Disclosing Party"); and
(2)
[
]("Reviewer").
IT IS AGREED:
Subject to the terms of this agreement, Reviewer will receive certain confidential, sensitive and
proprietary information from Disclosing Party in relation to the purchase of certain oil products (the
“Transaction”).
In this Agreement:
“Confidential Information” includes, but is not limited to, the following:
(a)
information and data of whatever nature relating to the Disclosing Party, its affiliates
and subsidiaries, to the activities of all or any such persons, and to the Transaction
(including, without limitation, the nature, form and substance of the Transaction, any
contacts, personal or company details shared as part of the Transaction, any conditions
or other facts with respect to any such possible Transaction, including the status
thereof, and all terms, as well as the existence and terms of this Agreement), whether
such information is: (a) written or oral (whatever the form or storage medium); or (b)
gathered by inspection or acquired (directly or indirectly) by Reviewer from Disclosing
Party or any of his Representatives (as defined below), regardless of whether such
information is specifically identified as “confidential”; and
(b)
such reports, interpretations, forecasts, analyses, compilations, studies and other
documents prepared by the Reviewer and/or its Representatives as contain or reflect or
are otherwise generated from (in each case whether in whole or in part) information
falling within paragraph (a) above.
“Representatives” means, with respect to any party hereto, such party’s affiliates, subsidiaries,
or group companies and/or its or any of their respective directors, officers, employees, agents,
advisers or representatives.
In consideration of Disclosing Party releasing the Confidential Information, Reviewer hereby irrevocably
and unconditionally agrees and undertakes to Disclosing Party, on behalf of itself and any of its
Representatives, as follows:
1.
Undertakings and Covenants
1.1
Subject to paragraphs 2 and 3, Reviewer shall:
(a)
treat all Confidential Information as secret and confidential;
(b)
only disclose the Confidential Information to its Representatives who strictly need to
receive and consider the Confidential Information for the purposes of evaluating,
effecting or administering the Transaction;
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2. (c)
not disclose the Confidential Information to anyone, other than its Representatives or as
otherwise provided by this Agreement, without Disclosing Party’s prior written consent;
(d)
not use the Confidential Information (including the identity of Disclosing Party or his
Representatives) for any purpose (including, but not limited to, any competitive, trading
or commercial purpose) other than for evaluating, effecting or administering the
Transaction; and
(e)
take all reasonable measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information and, without limiting the foregoing,
Reviewer shall take at least those measures that Reviewer takes to protect its own
confidential information.
1.2
Any Representative referred to in paragraph 1.1(b) will be informed of the confidential nature of
the Confidential Information and the purpose for which it may be used. Reviewer shall use its
reasonable endeavours to ensure that its Representatives observe the terms (mutatis mutandis)
of this Agreement. Reviewer shall, without proof of fault on its part, be responsible for any
breach of undertakings in this Agreement by Reviewer's directors, officers and employees as
they apply to such persons by virtue of this Clause. Reviewer shall promptly notify Disclosing
Party if it becomes aware of any breach of this Agreement by any of its Representatives to
whom any Reviewer or its Representatives has divulged all or any part of the Confidential
Information.
1.3
Reviewer shall not, save as and to the extent required by law or regulations as from time to time
in force or by order of any court of competent jurisdiction, without the prior written approval of
Disclosing Party make any public announcement with respect to the Transaction or any
transaction, discussion or negotiation involving Disclosing Party.
1.4
Any intellectual property conceived or developed during the course of discussions entered into
under this Agreement based upon or arising from the Confidential Information shall be solely
owned by Disclosing Party. Nothing in this Agreement is intended to grant any license or rights
to Reviewer under any patent, mask work right, copyright, trademark or any other proprietary
right of Disclosing Party, nor shall this Agreement grant Reviewer any license or rights in or to
the Confidential Information.
1.5
Reviewer acknowledges that the Confidential Information may contain material which is subject
to legal professional privilege. Reviewer agrees that the provision to it, and its receipt, of such
material is not intended to and does not constitute a waiver of such privilege against any third
party.
1.6
Reviewer confirms that the Confidential Information is not intended as, and should not be
construed in any way as, an invitation or inducement to it or any other person to engage in
investment activity and that the provision to it of any Confidential Information or non-Confidential
Information by Disclosing Party or his Representatives does not constitute an offer, or an
invitation to offer, for the issue or sale of any securities.
1.7
Reviewer acknowledges that, as any Confidential Information and any non Confidential
Information relating to the Transaction, Disclosing Party or his business, assets or liabilities
disclosed to Reviewer is for evaluation purposes only, save in the case of fraud or as otherwise
may be agreed in a definitive written agreement, Disclosing Party and his Representatives make
no representation, express or implied, and offer no warranty with respect to that material or
accept any responsibility with respect to the accuracy or completeness of such material.
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3. 1.8
Reviewer acknowledges that it shall conduct its own investigation and analysis of the
Transaction and the risks associated with it in order to arrive at an independent evaluation of the
risks associated with the Transaction including an investment in the shares of any fund to be
established in connection with the Transaction.
2.
Confidentiality Exclusions
For the purposes of this Agreement, the term Confidential Information shall not include, and
Reviewer will be under no obligation to keep confidential any information that:
(a)
(b)
is in the public domain or becomes generally available to the public other than by
reason of a breach of this Agreement or other duty of confidentiality owed by Reviewer
or its Representatives; or
(c)
3.
Reviewer can clearly demonstrate was already known to Reviewer at the time of its
disclosure by Disclosing Party; provided that such information was not subject to any
other duty of confidentiality owed to Disclosing Party;
becomes available to Reviewer on a non-confidential basis from a source other than
Disclosing Party, provided that such source is lawfully in possession of such information
and is not in breach of any legal, contractual or fiduciary obligation to Disclosing Party
with respect to such information.
Permitted Disclosure
Reviewer will be entitled to disclose any Confidential Information if and to the extent that
Reviewer is required to do so by any law or regulation, by any court or administrative proceeding
or similar legal process, provided that, except to the extent prohibited by law or regulation or
limited by the terms of a court order or similar legal process, Reviewer shall exercise
commercially reasonable efforts to notify Disclosing Party promptly upon becoming aware of any
such requirement and shall give Disclosing Party commercially reasonable assistance and
cooperate in good faith in connection with any legally available steps which Disclosing Party may
take to resist or narrow such requirements. Any such disclosure of Confidential Information in
such circumstances shall only be made to the minimum extent necessary for compliance with
the relevant law, regulation or order.
4.
Returning Confidential Information
1.9
Upon receipt of a written request from Disclosing Party, Reviewer shall:
(a)
(b)
1.10
return to Disclosing Party or destroy, as applicable, all documents and all other
materials containing or reflecting any Confidential Information, together with any copies,
which are in Reviewer’s possession or control or in the possession or control of any of
its Representatives and which are in a form capable of delivery or destruction; and
expunge all Confidential Information from any computer, word processor or similar
device into which it was programmed by Reviewer or on its behalf; provided, however,
that any electronic copies that are returned or deleted by Reviewer may remain on
backup tapes, hard drives, and similar formats but shall remain subject to the terms of
this Agreement.
Notwithstanding the foregoing, Reviewer may retain any Confidential Information that is required
to be maintained by them under any applicable law, rule or regulation, including information
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4. noted in company board minutes. Any such Confidential Information retained by Reviewer shall
remain subject to the terms of this Agreement.
1.11
Reviewer acknowledges that, subject to paragraphs 2 and 3, neither the return of any
Confidential Information nor the expunging of any of the same from their records will release
Reviewer from its obligations under this Agreement.
5.
Non-Circumvention
Reviewer agrees that:
(a)
(b)
without Disclosing Party’s prior written consent, save in the ordinary course of business,
it shall not contact, deal with, or otherwise become involved in any discussion or enter
into any transaction with any other of Disclosing Party’s business allies, allies’ owners,
clients, legal representatives, managers, business partners, and service providers
(including their respective associates, agents’ affiliates, intermediaries and
representatives) and any third party, corporation, partnership, service provider,
individual, investment fund, bank, trust or lending institution to which it has been firstly
introduced by Disclosing Party;
(c)
it shall not approach or solicit any management members, employees or consultants
involved in the Transaction in connection with a similar business activity for a period of
12 months from the date of this Agreement. For the avoidance of doubt, this restriction
shall not prohibit Reviewer from employing any person who has responded to a bona
fide recruitment advertisement not specifically targeted at such person. This clause
5(c) shall not bind Reviewer's advisers.
(d)
the undertakings in this clause apply to actions carried out by the Reviewer in any
capacity and whether directly or indirectly, on its own behalf, on behalf of any other
person or jointly with any other person; and
(e)
6.
it shall not, directly or indirectly, interfere with, circumvent or attempt to circumvent,
contact, bypass, or obviate Disclosing Party's interest in the Transaction, or the interest
or relationship between Disclosing Party and his business allies, allies’ owners, clients,
legal representatives, managers, business partners, and services providers (including
their respective associates, agents’ affiliates, intermediaries and representatives);
each of the covenants in this clause are considered fair and reasonable by the parties.
Duration
The obligations undertaken by Reviewer under this Agreement shall remain in effect for three
years from the date hereof, or in the event that a definitive written agreement regarding the
Transaction is entered into between the parties, this Agreement shall terminate on that date.
7.
Relief
Reviewer acknowledges that remedies at law may be inadequate to protect Disclosing Party
against any breach of this Agreement by Reviewer or its Representatives, and without prejudice
to any other rights and remedies otherwise available to Disclosing Party, Reviewer agrees that
money damages may not be a sufficient remedy for any breach of this Agreement by Reviewer
or any of its Representatives and Disclosing Party, or any of the persons described in the item
Confidential Information, as the case may be, shall be entitled to seek injunction and specific
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5. performance or any other form of equitable relief, as a remedy for any anticipated, threatened or
actual breach of this Agreement.
8.
Waiver
No failure or delay in exercising any right, power or privilege under this Agreement will operate
as a waiver of it, nor will any single or partial exercise of it preclude any further exercise.
9.
Severability
The provisions of this Agreement shall be severable in the event that any of the provisions are
held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable; the
remaining provisions shall remain enforceable to the fullest extent permitted by law.
10.
Entire Agreement
This Agreement embodies the entire understanding and agreement between the Parties with
respect to all Confidential Information for each Transaction and supersedes all prior
understandings and agreements relating thereto. No variation of this Agreement shall be valid
unless in writing and signed on behalf of each of the parties.
11.
Assignment
This Agreement may not be assigned by any party without the prior written consent of the other.
12.
Third Party Rights
A person who is not a party to this Agreement has no rights under the premises of the Contracts
(Rights of Third Parties) Act 1999 to enforce the terms, conditions or provisions of this
Agreement.
13.
Counterparts
This Agreement may be executed in one or more counterparts, each of which is an original, and
which when together shall constitute one and the same Agreement.
14.
Governing Law
This Agreement will be governed by and construed in accordance with the laws of England and
Wales, and each party to this Agreement submits to the exclusive jurisdiction of the English
courts.
Please confirm your acceptance of the terms of this Agreement by signing the acknowledgement below
and returning it to Disclosing Party.
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6. This Agreement has been signed on behalf of each of the parties by a duly authorised signatory on the
date stated at the beginning of this document.
SIGNED for and on behalf of NEWPOINT INVESTMENT HOLDINGS LIMITED
……………………………………………………
Signature
……………………………………………………
Print name
……………………………………………………
SIGNED for and on behalf of [
]
……………………………………………………
Signature
……………………………………………………
Print name
……………………………………………………
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7. This Agreement has been signed on behalf of each of the parties by a duly authorised signatory on the
date stated at the beginning of this document.
SIGNED for and on behalf of NEWPOINT INVESTMENT HOLDINGS LIMITED
……………………………………………………
Signature
……………………………………………………
Print name
……………………………………………………
SIGNED for and on behalf of [
]
……………………………………………………
Signature
……………………………………………………
Print name
……………………………………………………
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