Toolkit for confidentiality agreements

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Toolkit for confidentiality agreements

  1. 1. TOOLKIT FOR CONFIDENTIALITY AGREEMENTS in the Canadian Oil and Gas Sector for M&A and Financing Transactions NOVEMBER 2013 STIKEMAN ELLIOTT LLP | CALGARY TORONTO MONTRÉAL OTTAWA VANCOUVER NEW YORK LONDON SYDNEY www.stikeman.com
  2. 2. CONTENTS SURVEY OF CONFIDENTIALITY AGREEMENTS Common Market Practices in Canadian Oil and Gas Sector M&A and Financing Transactions TERMS OF REFERENCE....................................................................................... 1 SCOPE AND TERM.............................................................................................. 2 RECIPIENT USE.................................................................................................... 3 RECIPIENT REPRESENTATIVES............................................................................ 4 LIABILITY OF THE RECIPIENT............................................................................. 5 NON-SOLICITATION............................................................................................ 6 NO AGREEMENT................................................................................................. 7 STANDSTILL......................................................................................................... 8 LIABILITY FOR ACCESS TO THE DISCLOSING PARTY’S FACILITIES............... 10 REQUIRED DISCLOSURE AND COMPLIANCE WITH LAW.............................. 11 REMEDIES FOR BREACH................................................................................... 12 CANADIAN OIL AND GAS SECTOR CONFIDENTIALITY AGREEMENT CHECKLIST for Public M&A and Financing Transactions............................ 13 The authors may be reached for further information at Stikeman Elliott’s Calgary office at (403) 266-9000 or through email: Chip Johnston cjohnston@stikeman.com Brad Squibb bsquibb@stikeman.com Tom Bell tbell@stikeman.com Jocelyn Reikie jreikie@stikeman.com STIKEMAN ELLIOTT LLP
  3. 3. SURVEY OF CONFIDENTIALITY AGREE- SURVEY OF CONFIDENTIALITY AGREEMENTS MENTS Common Market Practices in Canadian COMMON MARKET PRACTICES IN CANADIAN Oil and GasGAS SECTORand Financing Transactions OIL AND Sector M&A M&A AND FINANCING TRANSACTIONS TERMS OF REFERENCE Stikeman Elliott conducted this survey based on a review of confidentiality agreements drafted for Stikeman Elliott clients. Forms of agreement used in 28 transactions were reviewed. The agreements surveyed were prepared in connection with M&A and/ or financing transactions rather than commercial, joint venture or intellectual property transactions. All agreements surveyed were drafted within the last five years. The agreements reviewed for the purpose of this survey contain complex legal language and terms. Most terms and provisions are not identical. Accordingly, Stikeman Elliott has relied on its judgment and exercised its discretion in categorizing and summarizing the information comprising this survey. This document is a general overview created for informational purposes only and does not constitute legal advice. If you or your business have questions about specific legal issues, legal counsel qualified in the appropriate jurisdiction(s) and familiar with your specific circumstances should always be consulted. The distribution of this document to any person does not create, continue or revive a lawyer-client relationship between Stikeman Elliott LLP and that person or any associated person or entity. We welcome your comments and suggestions. STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 1
  4. 4. SCOPE AND TERM What kind of information is covered by the confidentiality agreement? At least 88% of confidentiality agreements surveyed included the following terms regarding the scope of the confidentiality agreement: a) confidential information includes all information regarding the disclosing corporation held by the recipient, not only information received from the disclosing corporation; b) onfidential information includes notes made regarding any confidential information; c c) confidential information excludes information which: i) known to the public; is ii) s received on a non-confidential basis; i iii) as independently developed by the recipient; or w iv) as in possession of the recipient before execution of the confidentiality agreement. w What is the term of the confidentiality agreement? I One year: 36% I 18 months - two years: 48% I Three years: 8% I More than three years: 8% 2 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS I One year: 36% I 18 months - tw I Three years: 8 I More than yea
  5. 5. I Yes: 100% RECIPIENT USE 0% I No: I Yes: 39% I No: 61% How may the recipient use the confidential information? The recipient may use the confidential information only for the purpose of assessing the transaction Receipt of the confidential information does not give the recipient a license or rights in the confidential information I Yes: 39% I Yes: 96% I No: 61% I No: 4% I Yes: 79% I No: 21% I Yes: 96% I No: 4% The recipient may not copy or reproduce the confidential information I Yes: 39% I No: 61% I Yes: 96% I No: 4% I I I Yes: 56% I No: 44% STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 3
  6. 6. I Yes: 100% I No: 0% RECIPIENT REPRESENTATIVES The confidentiality agreement defined “representatives” to include at least employees, directors, officers, advisors and consultants of the recipient I Yes: 39% I Yes: 39%I Yes: 100% I No: 61% I No: 61%I No: 0% Each representative who receives confidential information must be informed of and agree to be bound by the terms of the agreement I Yes: 96% I Yes: 96%I Yes: 96% I No: 4% I No: 4% I No: 4% 4 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS The recipient is responsible for breach of the agreement by representatives 79% I Yes: 79% I Yes: I Yes: 39% I Yes: 96% No: 21% I No: 21% I I No: 61% I No: 4% The recipient must provide a list of representatives who will receive confidential information from the disclosing party upon request 56% I Yes: 56% I Yes: I Yes: 96% 44% I No: 44% I No: I No: 4%
  7. 7. LIABILITY OF THE RECIPIENT The acknowledgment of liability and indemnity extends to all actions of representatives of the recipient I Yes: 79% I 79%79% I Yes: Yes: I No: 21% I21%21% I No: No: The recipient is liable for all costs arising from breach of the agreement and will indemnify the disclosing party The disclosing party is a trustee of the indemnity and may enforce it on behalf of the disclosing party’s representatives I Yes: 88% I Yes: 88% I No: 12% I No: 12% I Yes: 25% I Yes: 25% I No: 75% I No: 75% I Yes: 88% I No: 12% I Yes: 25% I No: 75% STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 5
  8. 8. NON-SOLICITATION The recipient and its representatives shall not solicit for employment or consulting services, any person who was an officer, employee or consultant of the disclosing party while the confidential information was being provided to the recipient Yes: 76% No: 24% Yes: 76% No: 24% Duration of non-solicitation clause 12 months: 53% 18 months: 5% 24 months: 42% 32% of the agreements had shorter non-solicitation clauses than the term of the agreements 6 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS
  9. 9. NO AGREEMENT The disclosure of confidential information does not constitute a representation or warranty by the disclosing party regarding facts about the disclosing party The disclosing party may reject any proposal regarding a transaction and terminate the transaction discussions at any time II Yes: 96% Yes: 96% I Yes: 96% I I No: 4% IYes: 96% No: 4% I No: 4% I No: 4% II Yes: 44% Yes: 44% I Yes: 44% I I No: 56% IYes: 44% No: 56% I No: 56% I No: 56% The recipient shall have no claim against the disclosing party unless there is a definitive agreement that provides for such claim II Yes: 56% Yes: 56% I Yes: 56% I I No: 44% IYes: 56% No: 44% I No: 44% I No: 44% A definitive agreement does not include an executed letter of intent or any agreement not made in writing II Yes: 20% Yes: 20% I Yes: 20% I I No: 80% IYes: 20% No: 80% I No: 80% I No: 80% STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 7
  10. 10. STANDSTILL What can a recipient corporation do during the term of the confidentiality agreement? At least 72% of confidentiality agreements surveyed contained a standstill clause prohibiting a recipient corporation from the following activities during the term of the agreement: (a) acquiring or offering to acquire any shares of the disclosing party; (b) acquiring or offering to acquire any assets of the disclosing party; (c) proposing or entering into any merger with the disclosing party; and (d) making any public announcements with respect to the negotiations. 28% of the agreements did not contain at least one of the above listed standstill elements The recipient will not attempt to influence management or policies of the disclosing party during the term of the agreement ■ Yes: 60% ■ No: 40% 8 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS
  11. 11. STANDSTILL The agreement contains “most favoured nation” language which gives the recipient the benefit of any provision which is more advantageous to another recipient The agreement provides that the standstill terminates if a hostile bid is made for the target or if the target enters into a friendly transaction ■ Yes: 0% ■ Yes: 0% ■ No: 100% ■ No: 100% ■ Yes: 29% ■ No: 71% Notwithstanding any other provision of the agreement, following expiry of the standstill the recipient will not be prevented from engaging in any of the activities described in the standstill Term of the standstill ■ 1 year: 62% ■ 2 years: 38% 42% of the agreements had shorter standstills than the term of the agreements ■ Yes: 10% ■ Yes: 10% ■ No: 90% ■ No: 90% STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 9
  12. 12. LIABILITY FOR ACCESS TO THE DISCLOSING PARTY’S FACILITIES If the recipient or its representatives are provided with physical access to facilities of the disclosing party, they waive any claim against the disclosing party and all of its related parties relating to injury or death I Yes: Yes: 32% I 32% I No: 68%68% I No: I Yes: 32% I No: 68% The recipient and its representatives will comply with all rules and regulations regarding access to the disclosing party’s facilities I Yes: Yes: 28% I 28% I No: 72%72% I No: The recipient and its representatives will indemnify the disclosing party and its representatives for any damage as a result of access to the disclosing party’s facilities I Yes: Yes: 32% I 32% I No: 68%68% I No: I Yes: 32% I No: 68% 10 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS I Yes: 2 I No: 7
  13. 13. REQUIRED DISCLOSURE AND COMPLIANCE WITH LAW At least 88% of confidentiality agreements surveyed contained the following clauses concerning required disclosure: (a) f the recipient or its representatives are required by law to make disclosure of confidential information, i they shall provide the disclosing party with notice so that it may seek a protective order; (b) he recipient may only disclose to the extent required by law; and t (c) he recipient or its representatives required to make disclosure shall take reasonable commercial efforts t to ensure the disclosed confidential information receives confidential treatment. The recipient and its representatives agree to comply with applicable laws regarding the treatment of confidential material information received as part of the confidential information and to resulting restrictions on trading I Yes: 68% I No: 32% STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 11
  14. 14. REMEDIES FOR BREACH Can a disclosing party obtain a remedy other than monetary damages? 100% of confidentiality agreements surveyed contained an acknowledgement by the recipient that: (a) confidentiality agreement, if breached, creates irreparable harm to the disclosing party which the monetary damages cannot remedy; and (b) n the case of breach, the disclosing party is entitled to equitable relief, including an injunction that is i specific performance for breach in addition to any other remedy. The recipient and its representatives agree to waive any requirements for deposit of security or posting of any bond in connection with an equitable remedy I Yes: 68% I No: 32% 12 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS
  15. 15. CANADIAN OIL GAS SECTOR CONFIDENTIALITY AGREEMENT CHECKLIST For Public MA and Financing Transactions SCOPE Discloser Bias Recipient Bias o Confidential Information should include all information regarding the Discloser held by the Recipient, not just information received from the Discloser. Confidential information should only include information received from the Discloser, not information that the Recipient already has. o Confidential Information includes notes made regarding any of the Confidential Information. Confidential information should exclude any new information developed by the Recipient as a result of the receipt of the Confidential Information. o Confidential Information excludes information that: •• fter receipt by the Recipient becomes generally a known to the public other than as a result of disclosure by the Recipient or its Representatives in contravention of the Agreement; •• as received by the Recipient on a non-confidential w basis from a source other than the Discloser (and such disclosure was made in compliance with the Recipient's obligations to such third party after due inquiry by the Recipient); or •• as independently developed by the Recipient w without violation of the Agreement. It should not matter how it was developed. Exclude all information the Recipient has, other than information provided by the Discloser. o Representatives include employees, directors, officers, advisors and consultants. Representatives should include all persons who may provide financing to the Recipient. Be careful to avoid application of other operative provisions to anyone who is a Representative. Some agreements cast too broad a net and end up with unintended consequences. Representatives who do not receive Confidential Information should not be subject to a standstill or a non-solicit, for example. o Transaction definition should be narrowly specified to the contemplated arrangements. Transaction definition should be broad to permit a variety of uses of the Confidential Information. o Recipient definition should be broad to capture all affiliates of the Recipient. Recipient definition should be narrow to avoid binding unaffiliated entities that will never receive the information and do not wish to be bound by the restriction on use or standstill provisions. Recipient can promise to not share with them. Be wary of the ambiguous use of the phrase you to describe the Recipient. Clarity, not familiarity, is preferred. Alternatively, Recipient definition could be broad to capture ability to share with lenders and co-investors but include narrow operative clauses to those Recipient disclosures. STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 13
  16. 16. o The Agreement should not include a most favoured nations treatment provision. If another recipient obtains better terms, the Recipient should obtain the benefit of those terms as well and the Agreement should be amended to reflect those new terms immediately or at the Recipient’s option. This is difficult to get. Push for it in the standstill at least. o The Discloser should be able to assign the benefit of the Agreement. The Discloser should not be permitted to assign without consent of the Recipient, or only if there is a sale of all or substantially all of the assets. TERM Discloser Bias o Recipient Bias Term of the Agreement should be 24 months and should be harmonized with the standstill. Term should be 12 months and the standstill should be four to six months. Ensure that the use provision does not unintentionally lengthen the standstill. USE OF INFORMATION Discloser Bias Recipient Bias o The Recipient and Representatives cannot disclose to any person (other than the Representatives) the fact that discussions regarding a Transaction are taking place, that Confidential Information has been received, any view regarding Confidential Information or any terms of a potential Transaction. o The Recipient and Representatives must use the Confidential Information only for the purpose of assessing a Transaction. The Confidential Information is not to be used or kept for any other purpose. Except that the Recipient can make a hostile offer if the standstill has terminated. See comments below. The standstill should have a notwithstanding provision that permits the activities restricted by the standstill once the standstill terminates, notwithstanding any other provision of the Agreement. o The Recipient and Representatives are required to keep the information secret for the term of the Agreement. Subject to the usual exclusions regarding disclosure which is compelled by the appropriate authority. o The Recipient and Representatives will not copy or reproduce any part of the Confidential Information without permission, except as required to evaluate a Transaction. This is not practical. Delete this provision. o The receipt of Confidential Information does not give the Recipient or its Representatives a license or rights in the Confidential Information. o Discloser and Recipient agree that all Confidential Information remains subject to all applicable privilege. RECIPIENT REPRESENTATIVES Discloser Bias o o Recipient Bias The Recipient will not make disclosure of Confidential Information to any person other than the Representatives. Recipient should be able to make disclosure to anyone necessary to complete the transaction, including parties who may make a joint bid for assets, lenders and co-investors. Each Representative who receives Confidential Information will be informed of and agree to be bound by the terms of the Agreement in manner that makes it enforceable against them by the Discloser. There should be no direct agreement with the Representative to comply. Law firms whose partners act under ethical walls should not be restricted, as a partnership, by the non-solicit or the standstill. 14 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS
  17. 17. o The Recipient is responsible for breach of the Agreement by Representatives. o The Recipient must provide a list of Representatives to the Discloser upon request. Recipient should not be required to maintain a list. This can become complicated. RETURN OF MATERIALS Discloser Bias Recipient Bias o The Recipient will keep a record of the location of the Confidential Information. This should not be a requirement. It is not practical. o Upon the request of the Discloser, the Recipient and its Representatives will do the following within seven days of the request: •• eturn to the Discloser all Confidential Information r without retaining any copies; Recipient and its Representatives may elect to make reasonable efforts to destroy electronic copies of Confidential Information or to retain one copy of the Confidential Information, if required by law or internal policies, provided that it will remain confidential. Confidential Information may be retained in their computer systems as a result of automatic backup, but backups will be subject to the Agreement until destroyed. Backups may not be accessed by the Recipient or its Representatives during the backup period. •• estroy all notes that comprise a portion of the d Confidential Information; and Same comments as above. This term is not necessary if the definition of Recipient is narrowly drafted. •• rovide a certificate to the Discloser that all terms and p conditions have been satisfied regarding the return of materials. Provide a carve-out for information that is overlooked – frame all of the obligations in the first two bullets as objectives that the Recipient will use its commercially reasonable efforts to complete. Likely that is what the Recipient will do in any event. LIABILITY OF THE RECIPIENT Discloser Bias Recipient Bias o The Recipient is liable for all costs, including legal fees on a solicitor and client basis arising from breach, and will indemnify for any breach. Recipient’s liability should exclude economic loss and consequential damages and be limited to reasonable legal fees. o Liability and indemnity extends to all actions of Representatives that violate the Agreement. Remove indemnity language (especially for financial parties). Leave to action for damages only. o The Discloser is a trustee of the indemnity and may enforce it on behalf of the Discloser’s representatives. REQUIRED DISCLOSURE Discloser Bias Recipient Bias o If the Recipient or its Representatives are required by law to make disclosure of Confidential Information, they will provide the Discloser with notice so that the Discloser may seek a protective order. Recipient should provide notice in reasonable time and only if practicable in the context of the request. o Disclosure may only be made to the extent required by law based on written opinion of counsel. Only require the advice of legal counsel. STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 15
  18. 18. o The Recipient may make legally required disclosure if the Recipient and Discloser have not obtained a protective order. Discloser has specific time period to obtain a protective order. o The Recipient and its Representatives that are legally required to make disclosure will make best efforts to ensure the disclosed Confidential Information receives confidential treatment. Recipient will only make commercially reasonable efforts, for a specified period of time. NON-SOLICIT Discloser Bias Recipient Bias o The Recipient and its Representatives will not solicit for employment, consulting relationship or any other service capacity, a person who was an officer, employer or consultant of the Discloser while Confidential Information is being provided to the Recipient or its Representatives. This should not apply to a solicitation made by general publication (newspaper or electronic means) through the activities of a general search agency. Approaches that were not solicited are excluded. o Prohibition on solicitation extends beyond length of the term. Prohibition on solicitation should not last longer than the term of the Agreement, or, in the alternative, no non-solicit until the Recipient receives sensitive Personal Information such as detailed pay information. NO AGREEMENT Discloser Bias Recipient Bias o There will be no agreement regarding a Transaction until a definitive agreement is actually executed. The Recipient will have no claim against the Discloser for a matter unless there is a definitive agreement that provides for such claim. These provisions are not controversial and should be accepted. o The disclosure by the Discloser of Confidential Information does not constitute a representation or warranty regarding facts about the Discloser. o The Discloser is free to conduct any process regarding a potential Transaction. o The Recipient acknowledges that procedures regarding a Transaction may change at any time. o The Discloser may reject any proposal relating to a Transaction and terminate the Transaction discussions at any time. o A definitive agreement does not include an executed letter of intent or any agreement not made in writing. STANDSTILL Discloser Bias o Recipient Bias Confirm that neither the Recipient nor (to its knowledge) any of its affiliates own shares of the Discloser. Alternatively, get confirmation on how many shares they do hold. The standstill should not prevent the sale of shares. 16 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS
  19. 19. During the term of the Agreement the Recipient and its Representatives will not undertake any of the following activities without the consent of the board of the Discloser: If a most-favoured nations provision cannot be obtained in respect of all the terms of the agreement, seek this provision on the standstill, which is likely the most important restriction. •• cquire or offer to acquire any shares of the Discloser a or its affiliates; Should permit acquisitions of less than 5% of the shares in normal market transactions. Exclude affiliates from all restrictions to avoid unintended consequences. •• cquire or offer to acquire any assets of the Discloser; a Except in the ordinary course of business. •• ropose or enter into any merger or business with p the Discloser; o Should permit non-public proposals made to the Board of the Discloser. •• solicit proxies in respect to the Discloser; •• ttempt to influence the management or policies of a the Discloser; Except as such activity occurs in the course of ordinary business activity. Limit this to using the Confidential Information to achieve this objective, or refuse to accept this provision until final stage Confidential Information is provided. •• ake any public disclosure of a plan or intention m to acquire the Discloser; or •• dvise or encourage any person to do any of the a foregoing. Except as such activity occurs in the course of ordinary business activity. o These restrictions apply directly and indirectly and alone or in concert with others. The standstill should terminate (without further action) if the Discloser enters into an agreement to complete a Transaction or another party makes an unsolicited offer to complete a Transaction. o The term of the standstill should be the same as the term of the Agreement. The term of the standstill should be four to six months. Confirm that shorter standstill term is not impaired by a longer use provision by including a notwithstanding clause which provides that any activity prohibited by the standstill is permitted after it expires notwithstanding any other provision of the Agreement. NO CONTACT Discloser Bias Recipient Bias o The Recipient and its Representatives will not directly or indirectly contact any officer, director, employee or consultant of the Discloser, or a customer or supplier of the Discloser without the consent of the Discloser. This should only apply to Transaction related activities. Contact related to non-transactional activity is expressly permitted. o The Recipient and its Representatives agree that they will deal with a representative of the Discloser's investment bank exclusively for the purpose of obtaining Confidential Information and discussing a Transaction. This should not be restricted. Always need to have access to an officer. COMPLIANCE WITH LAW Discloser Bias o Recipient Bias The Recipient and its Representatives agree to comply with applicable law regarding the treatment of confidential material information received as part of the Confidential Information, including securities laws regarding the treatment of undisclosed material information. Obligation to comply with law should be sufficient. STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 17
  20. 20. LIABILITY FOR ACCESS Discloser Bias Recipient Bias o If the Recipient or its Representatives are provided with physical access to facilities of the Discloser, they waive claims against the Discloser and all of its related parties in respect to a claim for injury or death. Except in the case of negligence by the Discloser. Why would the ordinary rules of tort law be suspended? o The Recipient and its Representatives will indemnify the Discloser and its Representatives for any damage as a result of such access. o The Recipient and its Representatives will comply with all rules and regulations regarding access to the facilities. PRIVACY Discloser Bias o The Recipient and its Representatives may receive information about identifiable individuals (Personal Information). o All Personal Information is Confidential Information. o The Personal Information will be collected only for evaluating the Transaction and disclosed only to Representatives who need to know the Personal Information to evaluate the Transaction. o The Recipient and its Representatives will use appropriate security measures to safeguard Personal Information and the term of this obligation does not expire. o Recipient Bias If a Transaction is completed, the Recipient and its Representatives will only use Personal Information required to carry on the business. No other use may be made of the Personal Information without the consent of the disclosing persons. Require that the Discloser provide notice before providing this information so that it is easier to manage, or require that it be stripped of individually identifying information. NO AGENCY Discloser Bias Recipient Bias o The Recipient represents that it is acting only for itself. The Representatives are acting only for themselves. The Recipient and its Representatives cannot act as an agent, partner, co-participant or co-venturer for any third party regarding any third party regarding a Transaction. Other arrangements are only permitted with consent. Should not be required. As long as a joint-bidder or financing party agrees to sign the Agreement, that should be enough. o In addition to seeking consent, the Recipient must describe the identity of all persons with whom it considered acting as a partner, joint venture or any other related matter. Should not be required. It is not appropriate to share this information. 18 | STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS
  21. 21. REMEDIES Discloser Bias Recipient Bias o The Recipient and its Representatives acknowledge that the Agreement, if breached, would create irreparable harm to the Discloser that monetary damages cannot remedy. o The Discloser is entitled to equitable relief, including an injunction for specific performance in addition to any other remedy. o The Recipient and its Representatives agree to waive any requirements for deposit of security or posting of any bond in connection with an equitable remedy. Should not waive this requirement. Enforcement of this Agreement is not outside of the usual rules relating to equitable remedies. o The Recipient and its Representatives waive any right to notice in connection with the Discloser seeking an equitable remedy in connection with a breach as long as they are provided with notice of the outcome. Should always have notice of the action. STIKEMAN ELLIOTT LLP TOOLKIT FOR CONFIDENTIALITY AGREEMENTS | 19
  22. 22. CALGARY 4300 Bankers Hall West, 888 - 3rd Street S.W., Calgary, AB, Canada T2P 5C5 Tel: (403) 266-9000 Fax: (403) 266-9034 TORONTO 5300 Commerce Court West, 199 Bay Street, Toronto, ON, Canada M5L 1B9 Tel: (416) 869-5500 Fax: (416) 947-0866 MONTRÉAL 1155 René-Lévesque Blvd. West, 40th Floor, Montréal, QC, Canada H3B 3V2 Tel: (514) 397-3000 Fax: (514) 397-3222 OTTAWA Suite 1600, 50 O’Connor Street, Ottawa, ON, Canada K1P 6L2 Tel: (613) 234-4555 Fax: (613) 230-8877 VANCOUVER Suite 1700, Park Place, 666 Burrard Street, Vancouver, BC, Canada V6C 2X8 Tel: (604) 631-1300 Fax: (604) 681-1825 NEW YORK 445 Park Avenue, 7th Floor, New York, NY 10022 Tel: (212) 371-8855 Fax: (212) 371-7087 STIKEMAN ELLIOTT LONDON Dauntsey House, 4B Frederick’s Place, London EC2R 8AB England Tel: 44 20 7367 0150 Fax: 44 20 7367 0160 Authorized and regulated by the Solicitors Regulation Authority, SRA No. 77786 SYDNEY Level 12, 50 Margaret Street, Sydney, N.S.W. 2000, Australia Tel: (61-2) 9232 7199 Fax: (61-2) 9232 6908 © STIKEMAN ELLIOTT LLP | www.stikeman.com This publication provides general commentary only and is not intended as legal advice.

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