Dated ______2017
INVESTEC BANK PLC (IRISH BRANCH)
AND
Enslay Limited (in receivership)
AND
[ • ]
CONFIDENTIALITY AGREEMENT
(Potential Purchaser)
THIS CONFIDENTIALITY AGREEMENT is made on ______2017
BETWEEN:
(1) INVESTEC BANK PLC (IRISH BRANCH) (Investec Bank plc, a company incorporated under the laws of England and Wales with company registration number 489604 and having its registered office at 2 Gresham Street, London EC2V 7QP and registered in Ireland as a Branch with registration number 904428 and having a registered office at The Harcourt Building, Harcourt Street, Dublin 2, Ireland (hereinafter referred to as “Investec Bank plc (Irish Branch)” or “Investec”) ; and
(2) Enslay Limited (in receivership) with company registration number 417714 and having its registered office at T.A Sheehan & Co. Copley Street, Cork (hereinafter referred to as the “Vendor”) acting by receiver Kieran Wallace of KPMG, 1 Stokes Place, St. Stephen’s Green, Dublin 2.
(Investec and the Vendor hereinafter referred to as the “Companies”)
(3) [•] of [•] (the “Potential Purchaser”).
WHEREAS:
(A) The parties hereto are involved in negotiations (the “Negotiations”) with a view to entering into certain arrangements (the “Arrangements”).
(B) The parties hereto agree to enter into this Confidentiality Agreement to provide for the treatment of any Confidential Information, provided to the Potential Purchaser in connection with the Negotiations or pursuant to the Arrangements, as the case may be, on the terms of and subject to the conditions in this Confidentiality Agreement.
(C) The parties hereto also agree to regulate the use of Confidential Information in connection with any business relationship which may result from the Negotiations in accordance with this Confidentiality Agreement.
In consideration of the payment of €1.00, and for other good and valuable consideration, the receipt of which is hereby acknowledged, IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
In this Confidentiality Agreement, the following terms have the following meanings:
a) “Confidential Information” means any information, analyses, reports, data, interpretations, forecasts, records, business plans, business strategies, facts, intelligence, material relating to the Companies and any business or investment opportunities identified by the Companies including information given orally and in any document, electronic file or any other way of representing or recording information which contains or is derived from or copied from any such information, and includes any analyses, compilations, forecasts, interpretations, studies or other documents prepared by or on behalf of the Companies;
b) “group company” means any related company within the meaning of Section 2(10) of the Companies Act 2014 (as amended);
c) “Investec” means Investec and each of its group companies;
d) “Permitted Purpose” means the consideration and evaluation of the Arrangements;
e) “subsidiary” has the meaning given to that term in Section7 of the Companies Act 2014 (as amended from time to time) and “subsidiaries” shall be construed accordingly;
2. IT IS HEREBY ACKNOWLEDGED AND CONFIRMED BY THE POTENTIAL PURCHASER AS FOLLOWS:
2.1 That the Companies possess a valuable body of Confidential Information.
2.2 That the Companies will give the Potential Purchaser access to certain Confidential Information for the purposes of the Negotiations or in order that the Potential Purchaser may carry out its duties pursuant to the Arrangements, as the case may be.
2.3 That the Potential Purchaser’s duties include, without limitation, a duty of care, a duty of trust and confidence and a duty to act at all times in the best interests of the Companies.
2.4 That, unless the prior written consent of the Companies has been obtained, the disclosure of any Confidential Information to any third party customer of the Potential Purchaser or actual potential competitor of the Companies or any third party would place the Companies at a serious competitive disadvantage and would cause immeasurable (financial and other) damage to the business of the Companies and that, as a result, the Companies may seek an appropriate protective court order or any other remedy in respect of its rights which it considers suitable if it becomes aware that Confidential Information has been disclosed in breach of this Confidentiality Agreement, and that damages may not be an appropriate remedy for such breach.
2.5 That some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities laws relating to insider dealing and market abuse and the Potential Purchaser undertakes not to use any such Confidential Information for any unlawful purpose.
2.6 That the acknowledgements, undertakings, confirmations and agreements on the part of the Potential Purchaser given pursuant to this Confidentiality Agreement are given to the Companies and, without implying any fiduciary obligation on the part of the Companies.
2.7 That, if requested in writing to do so by the Companies, it shall (a) return all Confidential Information supplied by the Companies to it, (b) destroy or permanently erase (to the extent technically practicable) all copies of Confidential Information supplied by the Companies to it, (c) to the extent that Confidential Information has been received or stored electronically and automatically archived or backed-up, it will ensure that access to such Confidential Information shall be locked from access (unless otherwise required by law), and (d) procure that any person to whom the Potential Purchaser has supplied the Confidential Information complies with (a), (b) and (c) above, in each case, save to the extent that the Potential Purchaser or recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body.
2.8 That (a) neither the Companies nor any of their officers, employees, agents, suppliers or representatives (i) makes any representation or warranty, whether express or implied, as to, or assumes any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information and (ii) shall be under no obligation to update or correct any inaccuracy therein or be otherwise liable to the Potential Purchaser in respect thereof and (b) the supply of Confidential Information to the Potential Purchaser does not constitute an offer by or on behalf of the Companies, nor the basis of any contract.
3. IT IS HEREBY AGREED BY THE POTENTIAL PURCHASER AS FOLLOWS:
3.1 The Potential Purchaser shall keep confidential, and will protect from unauthorised disclosure or access, the Confidential Information in its possession to which the Potential Purchaser or its employees, servants, professional advisors, agents or representatives may have access and shall use the same degree of care and security measures that the Potential Purchaser takes to protect its own information of a similar nature, and shall use the Confidential Information only for the Permitted Purpose.
3.2 The Potential Purchaser shall use all reasonable endeavours to ensure that any employee, servant, professional advisor, agent or representative who comes into possession of any Confidential Information acknowledges and agrees to comply with the provisions of this Confidentiality Agreement as if it were a party to it.
3.3 The Potential Purchaser shall not during the continuance of the Negotiations, the Arrangements or this Confidentiality Agreement or at any time thereafter disclose or call to be disclosed to any person or use for the Potential Purchaser’s own purposes or for any purpose other than that of the Companies, any Confidential Information in relation to the Companies which the Potential Purchaser may have received or obtained in carrying out its duties pursuant to the Negotiations, the Arrangements or this Confidentiality Agreement or during the continuance of this agreement and the Potential Purchaser shall use its best endeavours to prevent the publication or disclosure of any such Confidential Information.
4. IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS:-
4.1 Each of the parties hereto shall treat as confidential all information obtained from the other for the purposes of the Negotiations or pursuant to the Arrangements, as the case may be, and shall not divulge such information to any person (except to such party’s own employees and then only to those employees who need to know same) without the other party’s prior written consent, provided however that this Clause shall not extend to information rightfully in the possession of such party prior to entering into this Confidentiality Agreement which is already public knowledge or will become such at a future date (otherwise than as a breach of this Clause) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this Confidentiality Agreement. The foregoing obligations as to confidentiality shall survive any termination of any contractual agreement entered into by the parties in relation to the Arrangements or this Confidentiality Agreement. The disclosure of information pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulatory body shall not constitute a breach of this Confidentiality Agreement.
4.2 The security and confidentiality obligations of the parties under this Confidentiality Agreement are subject to the provisions of the Data Protection Acts 1988 to 2003 (as amended) and all applicable laws, including relevant guidance notes which may be issued from time to time by the Irish Data Protection Commissioner.
4.3 No failure or delay on the part of the Companies in exercising any right, power or privilege under this Confidentiality Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of any other right, power or privilege hereunder.
4.4 This Confidentiality Agreement may only be amended or varied by the written agreement of the parties.
4.5 If at any time any provision of this Confidentiality Agreement (or any part hereof) is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, that shall not affect or impair (a) the legality, validity or enforceability in that jurisdiction of any other provision of this agreement (including the remainder of a provision where only part of that provision has become illegal, invalid or unenforceable or (b) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Confidentiality Agreement.
4.6 This Confidentiality Agreement may be executed in any number of counterparts each of which, when executed and delivered by one or both of the parties to this Confidentiality Agreement, is an original, but all of the counterparts together constitute the same document provided that this Confidentiality Agreement shall not be effective until each party hereto has executed and delivered at least one counterpart.
4.7 This Confidentiality Agreement shall be governed by and construed in accordance with the laws of Ireland and the parties submit to the non-exclusive jurisdiction of the courts of Ireland.
IN WITNESS WHEREOF the parties have executed this Confidentiality Agreement on the date written above.
Vendor
SIGNED by Kieran Wallace as agent
for and on behalf of
Enslay Limited (in receivership)
INVESTEC
SIGNED by
and by
as authorised signatories for and on behalf of
INVESTEC BANK PLC (IRISH BRANCH)
POTENTIAL PURCHASER
SIGNED by
[Insert name of Potential Purchaser where Potential Purchaser is an individual]
in the presence of:
SIGNED by
and by
for and on behalf of
[Insert name of Potential Purchaser where Potential Purchaser is a body corporate]
in the presence of: