CONFIDENTIALITY AGREEMENT ("this Agreement")
(1) [ ] a company incorporated and registered in Scotland with company number [ ]whose registered office is at [ ] (the "Discloser"); and
(2) [ ] residing at [ ] (the "Recipient"),
(each a "Party", together the "Parties")
(A) The Recipient wishes to receive Confidential Information from the Discloser in connection with the Proposed Transaction.
(B) The Discloser wishes to ensure that the Recipient maintains the confidentiality of the Confidential Information. In consideration of the mutual benefits of disclosing and receiving the Confidential Information, the Parties have agreed to comply with the terms of this Agreement.
1.1 The definitions and rules of interpretation in this Clause apply in this Agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in Glasgow are open for business.
Confidential Information: all confidential information relating to the Discloser or any member of its Group (however recorded or preserved) that is disclosed or made available (in any form or by any method) by the Discloser (or any of its representatives or advisers) to the Recipient (or any of itsrepresentatives or advisers) whether before or after the date of this Agreement, in connection with the Proposed Transaction, including:
(a) the fact that discussions or negotiations are taking place concerning the Proposed Transaction and the content and status of such discussions or negotiations;
(b) the existence of this Agreement and its terms;
(c) all confidential or proprietary information relating to the business or affairs, financial or trading position, assets, intellectual property rights, customers, clients, suppliers, employees, plans, operations, processes, products, intentions or market opportunities of the Discloser;
(d) the know-how, designs, trade secrets, technical information or software of the Discloser; and
(e) any other information that is identified as being of a confidential or proprietary nature.
References to Confidential Information shall include any Copies.
Copies: copies or reproductions of Confidential Information in any form or medium including any document, electronic file, note, extract, analysis, study, plan, compilation or any other way of representing or recording and recalling information which contains, reflects or is derived or generated from Confidential Information (or any part of it).
Group: in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.
Key Employee: any individual who is, at any time during the negotiations relating to the Proposed Transaction, an employee holding an executive or managerial position with, or an officer of, the Discloser or any member of its Group.
Permitted Purpose: considering, evaluating, negotiating or advancing the Proposed Transaction.
Permitted Recipient: any person referred to in clause 3.1 to whom Confidential Information is disclosed by, or at the request of, the Recipient.
Proposed Transaction: the acquisition by the Discloser or any party nominated by it of the 132 Ordinary Shares of £1 in the capital of the Discloser held by the Recipient.
Third Party Negotiations: any discussions or negotiations between the Discloser and anyone other than the Recipient or any of the Recipient's agents employees, advisers, or other representatives (Third Party) relating to either:
(a) any investment in the Discloser; or
(f) the disposal (whether by way of sale, offer, transfer or otherwise) of part of, or the whole of, the issued share capital (or any interest in such share capital) of the Discloser; or
(g) the disposal (whether by way of sale, offer, transfer or otherwise) of all, or any part of, the business or (other than in the ordinary course of trading) the assets of the Discloser.
1.2 References to Clauses are to the Clauses of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's successors and permitted assigns.
1.4 A reference to writing or written includes fax but not e-mail.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
2. Confidentiality undertakings
2.1 The Recipient undertakes to the Discloser that it shall:
(a) keep the Confidential Information secret and confidential and shall take all reasonable steps to preserve its confidentiality;
(b) not disclose or make available any Confidential Information to any person, except as permitted by this Agreement; and
(c) not use or exploit the Confidential Information in any way, except for the Permitted Purpose.
2.2 The Recipient shall only make such Copies as are strictly necessary for the Permitted Purpose and shall:
(a) clearly mark all Copies as confidential;
(b) ensure that all Copies can be separately identified from its own information; and
(c) ensure that all Copies within its control are protected against theft or unauthorised access.
2.3 At the request of the Discloser, the Recipient shall promptly:
(a) destroy or return to the Discloser all documents and materials containing, reflecting, incorporating, or based on any Confidential Information;
(b) erase all Confidential Information from the computer and communications systems and devices used by it, including any systems and data storage services provided by third parties (to the extent technically practicable);
(c) procure that each Permitted Recipient takes the steps referred to in Clause 2.3 (a) and Clause 2.3 (b) in relation to all Confidential Information received by it; and
(d) certify in writing to the Discloser that they have complied with their obligations under this Clause,
provided that the Recipient may retain documents and materials containing, reflecting, incorporating or based on the Confidential Information to the extent required by law or any governmental or regulatory authority of competent jurisdiction. The provisions of this Agreement shall continue to apply to any such documents and materials retained by the Recipient.
2.4 The undertakings and obligations in this Agreement do not apply to any Confidential Information:
(a) that is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed in breach of this Agreement; or
(b) if the Recipient can prove that the relevant information:
(i) was available to the Recipient on a non-confidential basis before it was disclosed by the Discloser or its representatives or advisers; or
(ii) was, is or has become available to the Recipient on a non-confidential basis from a person who, to the Recipient 's knowledge, was not bound by a confidentiality agreement with the Discloser or otherwise prohibited from disclosing the information to the Recipient; or
(c) that the Discloser agrees in writing is not Confidential Information or may be disclosed (subject to any limitations or other terms specified by the Discloserregarding the method or recipient or such disclosure).
3. Permitted disclosure
3.1 Subject to complying with its obligations under clause 3.2, the Recipient may disclose Confidential Information to:
(a) those officers or employees of the Recipient's Group that need to know the relevant Confidential Information for the Permitted Purpose;
(b) the professional advisers or consultants engaged to advise the Recipient in connection with the Proposed Transaction;
(c) the Recipient's bankers, potential investors or funders (and their respective professional advisers or consultants) for the purpose of securing financing for the Proposed Transaction; and
(d) any person whom the Discloser agrees in writing may receive the relevant Confidential Information.
3.2 Where Confidential Information is disclosed to a Permitted Recipient, the Recipient shall:
(a) inform the Permitted Recipient of the confidential nature of the Confidential Information before it is disclosed;
(b) procure that the Permitted Recipient shall, in relation to any Confidential Information disclosed to it, comply with this Agreement as if it were the Recipient and, if the Discloser so requests, procure that the Permitted Recipient enters into a confidentiality agreement with the Discloser on terms equivalent to those contained in this Agreement; and
(c) at all times, be responsible for each Permitted Recipient's compliance with the terms of this Agreement.
4. Forced disclosure
4.1 Subject to the provisions of this Clause 4, the Recipient may disclose Confidential Information to the minimum extent required by:
(a) an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction; or
(b) the rules of any listing authority or stock exchange on which the shares of the Recipient or any member of its Group are listed or traded; or
(c) the laws or regulations of any country to which the affairs of the Recipient or any member of its Group is subject.
4.2 Before the Recipient discloses any Confidential Information under Clause 4.1, the Recipient shall (to the extent permitted by law) use its best endeavours to:
(a) inform the Discloser of the full circumstances of the required disclosure and the Confidential Information that must be disclosed;
(b) take all such steps as may be reasonable and practicable in the circumstances to agree the contents of the required disclosure with the Discloser before it is made;
(c) consult with the Discloser as to possible steps to avoid or limit the required disclosure and to take those steps where they would not result in significant adverse consequences to the Recipient;
(d) gain assurances as to confidentiality from the body or authority requiring the disclosure; and
(e) where the disclosure is by way of public announcement, agree the wording of such announcement with the Discloser before it is made.
4.3 The Recipient shall co-operate with the Discloser (at the Discloser's cost and expense) if the Discloser decides to bring any legal or other proceedings to challenge the validity of a requirement to disclose Confidential Information pursuant to Clause 4.1.
4.4 If the Recipient is unable to inform the Discloser before Confidential Information is disclosed pursuant to Clause 4.1, the Recipient shall (to the extent permitted by law) inform the Discloser of the full circumstances of the disclosure and the information that has been disclosed immediately after such disclosure has been made.
5. Restrictions on the Recipient
5.1 The Recipient undertakes to the Discloser and each member of the Discloser's Group, that except with the prior written consent of the Discloser, it shall not (and shall procure that no member of the Recipient's Group shall) at any time during the Restricted Period:
(a) initiate or participate in any discussions, or have contact of any kind, with any officer or employee of the Discloser or any member of its Group relating to the Proposed Transaction, except in the ordinary course of business between the Discloser's Group and the Recipient; or
(b) employ or offer to employ, or enter into a contract for the services of a Key Employee, or procure or facilitate the making of any such offer by any other person; or
(c) entice, solicit or procure any Key Employee to leave the employment of the Discloser or any member of its Group, or make any attempt to do so, whether or not the Key Employee would commit a breach of contract in leaving his/heremployment; or
(d) canvass, solicit or otherwise seek the custom of, or have any dealings with any person who is at the date of this Agreement, or who has been at any time during the period of six months immediately preceding the date of this Agreement, a client or customer of the Discloser's Group ("Restricted Customer"), in relation to the supply of goods, products or services the same as or similar to those supplied by the Discloser's Group; or
(e) induce or attempt to induce a Restricted Customer to cease conducting or to reduce the amount of business conducted with, or to vary adversely the terms upon which it conducts business with, the Discloser's Group, or do any other thing which is reasonably likely to have such an effect.
5.2 The undertakings in clause 4.1 are intended for the benefit of, and shall be enforceable by, the Discloser and each member of its Group and apply to actions carried out by the Recipient or any member of the Recipient's Group in any capacity (including as shareholder, partner, director, principal, consultant, officer, agent or otherwise) and whether directly or indirectly, on its own behalf or on behalf of, or jointly with, any other person.
5.3 Each of the undertakings in clause 4.1:
(a) is considered fair and reasonable by the Parties;
(b) is a separate undertaking by the Recipient; and
(c) shall be enforceable separately and independently of any person's right to enforce any one or more of the other undertakings contained in that Clause.
6.1 The Recipient shall indemnify the Discloser and each member of its Group (each an "Indemnified Person") against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by an Indemnified Person arising out of or in connection with any breach of this Agreement by the Recipient or a Permitted Recipient.
6.2 If a payment due from the Recipient under clause 6.1 is subject to tax (whether by way of direct assessment or withholding at its source), the Indemnified Person shall be entitled to receive from the Recipient such amounts as shall ensure that the net receipt, after tax, of the Indemnified Person in respect of the payment is the same as it would have been were the payment not subject to tax.
7. Reservation of rights and Recipient 's acknowledgement
7.1 This Agreement and the supply of Confidential Information shall not constitute an offer by, or any a representation or warranty on the part of the Discloser or any member of its Group, to enter into the Proposed Transaction, or any further agreement with the Recipient.
7.2 Nothing in this Agreement shall impose an obligation on either Party to continue discussions or negotiations in connection with the Proposed Transaction, or an obligation on the Discloser, or any member of its Group to disclose any information to the Recipient (whether Confidential Information or otherwise).
7.3 All rights in the Confidential Information are reserved and none of the Confidential Information shall be the property of the Recipient. The disclosure of Confidential Information to the Recipient shall not give the Recipient or any other person any licence or other right whatsoever in respect of any Confidential Information beyond the rights expressly set out in this Agreement.
7.4 The Recipient acknowledges that the Confidential Information may not be accurate or complete and neither the Discloser , nor any member of the Discloser's Group, nor their respective agents or advisers make any warranty or representation (whether express or implied) concerning the Confidential Information, or its accuracy or completeness.
7.5 If the Proposed Transaction proceeds, the Recipient shall enter into an Share Purchase Agreement with Discloser under which the Recipient shall acknowledge that it has not been induced to enter into that agreement by any warranty or representation other than as set out in that agreement and the Recipient shall have no rights or remedies in respect of any warranty or representation (whether made innocently or negligently) that is not expressly set out in that agreement.
7.6 The Recipient shall be liable for the actions or omissions of the Permitted Recipients in relation to Confidential Information as if they were the actions or omissions of the Recipient.
8. Inadequacy of damages
Without prejudice to any other rights or remedies that the Discloser may have, the Recipient acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the Recipient. Accordingly, the Discloser shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
9.1 This Agreement shall terminate upon completion of the Proposed Transaction.
9.2 In the event that the Proposed Transaction does not complete the rights and obligations of the Parties under this Agreement shall subsist without limit of time.
Neither Party shall assign, transfer or deal in any other manner with any or all of its rights and obligations under this Agreement.
11.1 A notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, recorded delivery or special delivery in each case to that party's address as set out in this agreement (or to such other address as that party may notify to the other parties in accordance with this agreement).
11.2 Delivery of a notice is deemed to have taken place (provided that all other requirements in this Clause 11 have been satisfied) if delivered by hand, at the time the notice is left at the address or, if sent by post, on the second Business Day after posting, unless such deemed receipt would occur outside business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of deemed receipt), in which case deemed receipt will occur when business next starts in the place of receipt (and all references to time are to local time in the place of receipt).
11.3 This Clause 11 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.4 A notice given under or in connection with this Agreement is not valid if sent by e-mail.
12. Entire agreement
12.1 This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.2 Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that he/sheshall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
13. Variation and waiver
13.1 No variation of this Agreement shall be effective unless it is in writing and signed by all the Parties (or their authorised representatives).
13.2 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
Each Party shall pay its own costs and expenses incurred in connection with the Proposed Transaction, including the negotiation, preparation and execution of this Agreement and the evaluation and review of Confidential Information.
16. Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17. Governing law and jurisdiction
17.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
17.2 Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
In witness whereof these presents consisting of this and the preceding 10 pages are signed together as follows:
Signed for and on behalf of [ ]
on theday of2015
in the presence of:
Signed by [ ]
on theday of2015
in the presence of: