NON DISCLOSURE AGREEMENT (NDA)
Non Disclosure Agreement
This CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of ___________ , 2011,
is made by and between ___________________ Ltd , a company incorporated
under the laws of _________________________________________and having its office located at ________________________ ( “Company” and “Recipient”) and PT. Prima Inti Karsa Abadi (PIKA), a company incorporated under the laws of Indonesia, and having its registered office at Jalan Balai Pustaka Timur No. 39, Rawamangun, Jakarta 13220 - Indonesia. (“Company” and “Recipient”), (each of Company and Recipient may be referred to herein as a “Party” and collectively as the “Parties”).
RECITALS
WHEREAS,
Recipient wishes to receive and review certain Confidential Information
(as defined herein) about the Company, its subsidiaries and their
respective businesses for the purpose of evaluating a possible Fund
Distribution agreement (the "Proposed Transaction"); and
WHEREAS,
in consideration of Recipient being supplied with Confidential
Information, Recipient is willing to give the undertakings contained in
this Agreement and, in consideration of such undertakings, the Company
is willing to provide Recipient with such Confidential Information upon
the terms and conditions of this Agreement;
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual agreements and covenants
herein contained, the Parties, intending to be legally bound, hereby
agree as follows:
1. Confidential Information. For purposes of this Agreement, the term “Confidential Information”
shall mean all information relating to the Company or any Associated
Entity and their businesses, whether in oral, written, visual,
electronic or digital form, prepared by the Company or any member of its
Group or any of their respective Representatives or Advisers and that
is disclosed to Recipient by the Company or any member of its Group or
any of their respective Representatives or Advisers whether before or
after this Agreement is entered into, for the purpose of considering,
advising in relation to or furthering the Proposed Transaction (and any
information or analysis derived from such information). The term
"Confidential Information" does not include information which (i) is
already in Recipient’s possession; or (ii) was or becomes generally
available to the public other than as a result of a disclosure by
Recipient or Recipient’s Representatives in violation of this Agreement;
or (iii) was or becomes available to Recipient on a non-confidential
basis from any source; provided that such source is not known by
Recipient after reasonable inquiry to be bound by a confidentiality
agreement with or other obligation of secrecy to the Company or any
member of its Group; or (iv) is generated independently by Recipient or
any of Recipient’s Representatives without reference to Confidential
Information.
For the purposes of this Agreement an "Associated Entity"
of the Company means any company in which the Company has or acquires a
direct or indirect shareholding and any person (including an
individual, body corporate, unincorporated association, trust or
partnership) which is a direct or indirect shareholder in the Company; "Advisers",
in relation to any person, means professional advisers advising it in
relation to the Proposed Transaction, including partners in and
directors and employees of such advisers; "Group" , in relation
to any person, means any corporations which are holding companies or
subsidiaries of it or of any such holding company; and "Representative"
in relation to any person, means the directors, officers, employees
agents and consultants of, and individuals seconded to work for, it or
other companies within its Group.
2. Confidentiality. Recipient
shall, and shall procure that the members of its Group and its
Representatives and Advisers shall, keep all Confidential Information
confidential and shall not disclose any Confidential Information to any
person or entity including the affiliates and subsidiaries of the
Recipient for any reason whatsoever other than to a limited number of
its Representatives of the Recipient who actually need to have knowledge
of the Confidential Information, without the express prior written
consent of the Company; provided, however, that any of such information
may be disclosed as required by law or regulation so long as Recipient
complies with the provisions of the following paragraph.
Recipient
agrees that it shall receive, protect and maintain the Confidential
Information in the strictest confidence. Recipient agrees to treat the
Confidential Information as confidential and prior to the disclosure of
Confidential Information to a Representative, member of its Group and/or
Advisers, the Recipient shall procure that its Representative shall
agree to be bound by this Agreement; Recipient will, in any event, be
responsible for any breach by the Recipient Representatives, members of
the Group and/ or Advisers of the obligations contained in this
Agreement.
The
Recipient agrees not to disclose and will direct its Representatives,
members of the Group and/ or Advisers not to disclose to any other
person, either the fact that discussions or negotiations are taking
place or any information concerning the Proposed Transaction including
the status thereof. In particular, the Recipient
acknowledges and confirms that it will not approach or engage in any
communication with any bankers, advisors, suppliers, customers of the
other party or any employees of the other party regarding the
Confidential Information without first obtaining the prior written
consent of the other party;
3. Limited Use of Confidential Information. Recipient
shall, and shall procure that the members of its Group and its
Representatives and Advisers shall, only use Confidential Information
for the specific purpose of evaluating the Proposed Transaction with the
Company and shall not use Confidential Information for any other
purpose. If Recipient or any of Recipient’s
Representatives or Advisers is requested or required (by oral question
or request for information or documents in legal proceedings,
interrogators, subpoena, civil investigative demand or similar process)
to disclose any information supplied to Recipient in the course of its
dealings with the Company, it is agreed that Recipient shall and shall
procure that the members of its Group and its Representatives and
Advisers shall, to the extent reasonably practicable, provide the
Company with reasonable notice of any such request or requirement so
that either Recipient or the Company or both may seek an appropriate
protective order or, by mutual agreement, waive Recipient’s compliance
with the provisions of this Agreement. It is
further agreed that, if in the absence of a protective order or the
receipt of a waiver hereunder Recipient or any of Recipient’s
Representatives or Advisers believes, after consultation with counsel,
that it is required to disclose Confidential Information or any part of
thereof to any tribunal, regulatory agency, self-regulatory organization
or stock exchange, Recipient or any of Recipient’s Representatives may
disclose such information to such tribunal regulatory agency,
self-regulatory organization or stock exchange; provided, (i) that
Recipient gives the Company written notice of the information to be
disclosed as far in advance of its disclosure as is reasonably
practicable and, upon the Company's request and at the Company's
expense, use Recipient’s commercially reasonable efforts to cooperate in
obtaining assurances that confidential treatment will be accorded to
such information; and (ii) only that portion of Confidential Information
which is legally required to be disclosed will be disclosed. In
any event, Recipient shall not, and shall procure that the members of
its Group and its Representatives and Advisers shall not, oppose action
by, and will cooperate with the Company to obtain an appropriate
protective order or other reliable assurance that confidential treatment
will be accorded to such information.
4. Ownership of Confidential Information; Return or Destruction of Confidential Information. All Confidential Information shall be and remain the property of the Company. Upon
the request of the Company, all Confidential Information (including any
copies thereof), shall be, at Recipient’s option, (a) promptly returned
by Recipient to the Company, to the extent such Confidential
Information is capable of being returned or (b) destroyed by Recipient,
to the extent such Confidential Information is capable of being
destroyed, and Recipient shall certify to the Company in writing that
such Confidential Information (including all copies thereof) has been
destroyed; provided, that where Recipient is required by any law,
regulation or governmental or regulatory body to retain any documents
and materials (or copies thereof) containing the Confidential
Information, it must notify the Company in writing of such retention
giving details of the information which it has been required to retain.
5. No License. Nothing contained in this Agreement shall be construed as granting or conferring upon Recipient, the members of its Group, its Representatives or Advisers any
rights by license or otherwise, expressly, impliedly, or otherwise for
any invention, discovery or improvement made, conceived, or acquired by
the Company prior to, on or after the date of this Agreement.
6. Disclosure of Agreement. The
Company and Recipient shall not, and Recipient shall procure that the
members of its Group and its Representatives and Advisers shall not,
publicly announce or disclose the existence of this Agreement or its
terms and conditions, advertise or release any publicity regarding this
Agreement, or disclose that the Parties are considering the Proposed
Transaction without the prior written consent of the non-disclosing
Party.
7. Non Circumvention.
The company or any associated entity or individual shall not enter into
a Transaction directly or indirectly with any third party or parties
introduced by either party, either electronically or by mail to the
company, without the prior written consent of either party whether a
transaction started by the parties completes or not.
The
Parties hereby irrevocably agree that neither shall directly or
indirectly interfere with, circumvent or attempt to circumvent each
other’s interest or the interest or relationship between the Parties and
third parties to change, increase or avoid directly or indirectly
payment of established fees or commission as long as assets introduced
by either party remain in existence.
In
the event of circumvention either directly or indirectly, the
circumvented party shall be entitled to compensation, such compensation
being equal to any commission or fees the party would have been entitled
to had the circumvention not occurred.
8. Successor and Assigns. This
Agreement shall inure to the benefit of and be binding on the Parties
and their respective successors, permitted assigns and legal
representatives.
9. Agency:
Recipient represents and warrants that it is acting in its capacity as
principal on its own account and not as agent or broker for any other
person.
10. No Warranty:
Recipient accepts that, other than expressly provided in writing in any
agreement subsequently entered into by the Company with Recipient in
connection with the Proposed Transaction, the Company gives no
representation or warranty as to the truth, accuracy or completeness of
any Confidential Information and that the Company will not be liable to
Recipient in respect of any Confidential Information or its use.
11. Remedies.
Recipient agrees and acknowledges that because of the valuable and
often sensitive nature of the Confidential Information, damages would
not be an adequate remedy for a breach of any term of this agreement and
Recipient, therefore, Recipient agrees that the Company is entitled in
addition to its other rights and remedies under this Agreement and
Applicable Law, to the remedies of injunction, specific performance and
other equitable relief for a threatened or actual breach of any term of
this Agreement by Recipient or any of its Representatives without proof
of actual or special damage.
Recipient
agrees to indemnify the Company on demand and hold the Company harmless
against all costs, losses or expenses which the Company incurs
resulting from any breach or non- performance by Recipient or its
Representatives, members of its Group and/ or Advisers of any of the
terms of this Agreement.
12. No Formal Business Relationship. This
Agreement will not and does not create a joint venture, partnership or
other formal business relationship or entity of any kind, or an
obligation to form any such relationship or entity, between the Parties. Recipient
and the Company agree that, unless and until a definitive agreement
between the Company and Recipient with respect to any Proposed
Transaction has been executed and delivered, neither the Company nor
Recipient will be under any legal obligation of any kind whatsoever with
respect to any such Proposed Transaction by virtue of this or any
written or oral expression with respect to any such Proposed Transaction
except, in the case of this Agreement, for the matters specifically
agreed to herein. Recipient and the Company
further agree that this Agreement does not impose any obligation on the
Parties to agree to the Proposed Transaction or any other relationship
now or in the future. The agreements set forth in this paragraph may be
modified or waived only by a separate writing executed by both the
Company and Recipient expressly modifying or waiving such agreement. The
undertakings given by Recipient under this Agreement are given to the
Company and (without implying any fiduciary obligations on the Company’s
part) are also given for the benefit of the Company and each other
member of the Group.
13. No Waiver. A
waiver by the Company or the failure of the Company to claim a breach
of any provision of this Agreement shall not be deemed to constitute a
waiver or estoppel with respect to any subsequent breach of any
provision hereof.
14. Severability. If
any portion of this Agreement shall be judicially declared to be
invalid, unenforceable or void, such decision shall not have the effect
of invalidating or voiding the remainder of this Agreement, and the part
or parts of this Agreement so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom and the remainder will
have the same force and effectiveness as if such part or parts had never
been included herein.
15. Term. Recipient’s obligations under this Agreement shall terminate _______________, 1 year from the date hereof.
16. Amendments. Any
amendment or modification to this Agreement shall be effective only if
made in a written instrument and signed by both Parties.
17. Notices:
Notices under this Agreement shall be in writing and in the English
language, or if not in the English language, accompanied by a properly
prepared translation into the English language and signed by or on
behalf of the person giving it and shall be served by delivering it to
the party due to receive it at the address above or email set out in
this clause and shall be deemed to have been delivered in accordance
with this clause.
____________________________________
____________________________________
or
such other address or email as the relevant Party notifies to the other
Party, which change of address shall only take effect if delivered and
received in accordance with this clause. A notice so addressed shall be
deemed to have been received; (i) if personally delivered, at the time
of delivery; (ii) if sent by pre-paid first class post, recorded
delivery or registered post, three business days after the date of
posting to the relevant address; (iii) if sent by registered air-mail,
five business days after the date of posting to the relevant address;
(iv) if sent by fax, on successful completion of its transmission as per
a transmission report from the machine from which the fax was sent; (v)
by email on receipt or reply. For the purposes of this Agreement a "business day" means a day on which banks are generally open for business in the Cayman Islands.
18. Choice of Law. This Agreement shall be governed by and construed in accordance with the law of Singapore.
19. Jurisdiction.
The parties to this Agreement irrevocably agree that the courts of the
Cayman Islands shall have exclusive jurisdiction to decide and to settle
any dispute or claim arising out of or in connection with this
Agreement ("Proceedings").
20. No Assignment. Neither
this Agreement nor any of the rights, benefits or obligations hereunder
may be assigned or delegated by Recipient (whether by operation of law
or otherwise) without the prior written consent of the Company.
21. Captions. The
captions and headings in this Agreement have been inserted for
convenience only and shall be given no substantive meaning or
significance whatsoever in construing the terms and provisions of this
Agreement.
22. Counterparts. This
Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one
instrument.
23. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter addressed herein.
The Parties have executed this Agreement as of the date first written above.
By:
Name: ____________________________________
Title: Chairman / CEO
By: ___________________________________
Name:____________________________________
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