CONFIDENTIALITY AGREEMENT
This confidentiality agreement (hereinafter referred to as the “Agreement”) is entered
into the ---th day of [------------] 2012 by and between:
PANORO ENERGY LIMITED, a limited liability company, incorporated under the laws of
England and Wales whose registered office is located at 43-45 Portman Square, London
W1H 6LY, London, United Kingdom (company registration number 06386242)
(hereinafter referred to as the "Disclosing Party"). Panoro Energy Limited is the group
service company and a subsidiary of Panoro Energy ASA whose registered office is at
P.O. Box 1885 Vika, 0124 Oslo, Norway, and
XXXXXXXXXXXXX a limited liability company organised and existing under the laws of ----------------- under company number -----------, and having its registered office located at
-------------------------------------- (hereinafter referred to as the “Receiving Party”).
The companies named above, also referred to herein individually as "Party" or
collectively as "Parties", agree as follows:
Recitals
Whereas, the Parties have entered into a discussion as at the date hereof with respect
to the evaluation and possible acquisition by the Receiving Party of certain petroleum
exploration and production rights held by the Disclosing Party in the asset described in
Exhibit A (hereinafter referred to as the “Asset”);
Whereas, the Receiving Party wishes to review certain Confidential Information (as
defined herein) owned by the Disclosing Party and the Disclosing Party is willing to make
available to the Receiving Party such Confidential Information solely in accordance with
the terms and condition set forth herein;
Whereas, the Parties enter into this Agreement in order to assure the confidentiality of
the Disclosing Party Confidential Information in accordance with the terms of this
Agreement.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1.
Disclosure of Confidential Information. The Disclosing Party is willing, in
accordance with the terms and conditions of this Agreement, to disclose (or through its
representatives) to the Receiving Party (or its representatives) certain Confidential
Information on a nonexclusive basis relating to the Asset.
For the purpose of this Agreement, "Confidential Information" shall mean all information
relating to the Disclosing Party’s or any of its Affiliated Companies’ business, operations,
assets, liabilities, plans, prospects and affairs, or any transaction, which has been or is
disclosed to or acquired by the Receiving Party regardless of whether such information
is in oral, visual, electronic, written or other form and whether or not it is identified as
"confidential".
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Confidential Information includes (i) technical, geological and geophysical information
and data such as all engineering reports, environmental reports, geological information,
maps, land and lease information, well data, reserve and prospect data, production data
and seismic information; commercial and business information such as trade secrets,
know-how, technology, inventions, algorithms, prototypes, designs, drawings and
sketches; (ii) business and commercial information on joint venture partners, agents,
clients, customers, consumers, suppliers, distributors, consultants, financial advisors and
dealers; employee and compensation information and records; pricing information, costs
and budgets; licence or permit, arrangements; contracts; research and development
activities; computer data, files, tapes, disks, programs (including source codes and
object codes) and the information contained therein; sales or marketing techniques or
plans; operations and service manuals; business, statistical and technical data, reports,
records and files; procedures, processes, proposals and plans; formulae, (iii) accounting
and financial information, analysis, reports and projections; business and (iv) legal and
contractual information, opinions and communications, mail, notes, correspondence,
discussions and memoranda.
2.
Receiving Party to Keep Information Confidential. In consideration of the
disclosure referred to in Paragraph 1 hereof, the Receiving Party agrees that the
Confidential Information (which shall include the fact that discussions, negotiations or
investigations are taking place with respect to the Asset or concerning a possible
transaction between the Parties) thereof or its status or the fact that Confidential
Information has been made available to the Receiving Party shall be kept strictly
confidential and shall not be sold, traded, published, or otherwise disclosed to anyone in
any manner whatsoever, including by means of photocopy or reproduction, without the
Disclosing Party’s prior written consent, except as provided in Paragraphs 3, 4 and 5
below.
3.
Disclosure Without Consent. The Receiving Party may disclose the Confidential
Information without the Disclosing Party’s prior written consent only in accordance with
Paragraphs 4 or 5 below or to the extent such information:
(i)
is already lawfully known to the Receiving Party as of the date of disclosure
hereunder and can be so evidenced by the Receiving Party;
(ii)
is already in possession of the public or becomes available to the public other
than through the act or omission of the Receiving Party;
(iii)
is required to be disclosed under applicable law or by an applicable
governmental order, decree, regulation, or rule or as required by a stock exchange on
which the Receiving Party or one of its Affiliates is listed (provided that the Receiving
Party shall give written notice to the Disclosing Party prior to such disclosure); or
(iv)
is acquired independently from a third party which represents that it has the right
to disseminate such information at the time it is acquired by the Receiving Party,
provided always that the Receiving Party has no reason to question the validity of such
representation.
4.
Disclosures to Affiliated Company. The Receiving Party shall be entitled to
disclose the Confidential Information without the Disclosing Party’s prior written consent
to an Affiliated Company (as hereinafter defined), provided that the Receiving Party
guarantees the adherence of such Affiliated Company to the terms of this Agreement.
“Affiliated Company(ies)” means with respect to either Party any company or legal entity
which (a) controls the Receiving Party either directly or indirectly, or (b) is controlled
directly or indirectly by the Receiving Party, or (c) is directly or indirectly controlled by a
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company or entity which directly or indirectly controls the Receiving Party. “Control”
means the right to exercise fifty percent (50%) or more of the voting rights in the
appointment of the directors of such company or the right to manage such legal entity.
5.
Disclosure in Certain Cases. The Receiving Party shall be entitled to disclose
the Confidential Information without the Disclosing Party’s prior written consent to those
who have a clear need to know in order to evaluate the Confidential Information for the
Receiving Party, including:
(a)
employees, officers and directors of the Receiving Party; and the employees,
officers and directors of an Affiliated Company of the Receiving Party;
(b)
any professional consultant or agent retained by the Receiving Party or its
Affiliated Company for the purpose of evaluating the Confidential Information;
(c)
any bank or financial institutions for the possible financing of the Receiving
Party's participation in the Asset.
Prior to making disclosures to persons under subparagraph (b) above, the Receiving
Party shall ensure that an undertaking of confidentiality, substantially in the same form
and content as this Agreement has been obtained from each such person; provided,
however, that in the case of outside legal counsel, the Receiving Party shall only be
required to procure that such legal counsel is bound by an obligation of confidentiality.
Receiving Party obligations of nondisclosure and limited use under this Agreement shall
be deemed fully met if the Receiving Party uses the same degree of care for the
protection from disclosure and unauthorised use of the Confidential Information as it
uses for its own similar information and data.
6.
Use of Confidential Information by Receiving Party. The Receiving Party shall
only use or permit the use of the Confidential Information disclosed under Paragraphs 4
or 5 above to evaluate the assets.
7.
Receiving Party Responsibilities. The Receiving Party shall be responsible for
ensuring that all persons to whom the Confidential Information is disclosed under this
Agreement shall keep such information confidential and shall not disclose or divulge the
same to any unauthorised person.
8.
Property Rights in the Confidential Information. The Receiving Party shall
acquire no proprietary interest in or right to the Confidential Information. The Confidential
Information shall remain the property of the Disclosing Party, and the Disclosing Party
may demand the return thereof at any time upon giving written notice to the Receiving
Party. Within thirty (30) days of the receipt of such notice, the Receiving Party shall
return all of the original Confidential Information and shall return or destroy all copies
and reproductions (both written and electronic) in its possession and in the possession
of persons to whom it was disclosed pursuant to Paragraphs 4 and 5 hereof (other than
in relation to any Confidential Information that has been copied as a result of the usual
back up procedures of the Receiving Party).
9.
Termination of this Agreement. The provisions of this Agreement shall apply until
the earlier of being superseded by the confidentiality provisions of an agreement or
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agreements relating to the Asset entered into by the Disclosing Party and Receiving
Party or until the expiry of three (3) years from the date first above written.
10.
Warranties, Representations and Disclaimers. The Disclosing Party hereby
represents and warrants that it has the right and authority to disclose the Confidential
Information to the Receiving Party. The Disclosing Party, however, makes no
representations or warranties, express or implied, as to the quality, accuracy or
completeness of the Confidential Information disclosed hereunder, and the Receiving
Party expressly acknowledges the inherent risk of error in the acquisition, processing
and interpretation of geological and geophysical data. The Disclosing Party, its Affiliated
Companies, and their officers, directors and employees shall have no liability with
respect to the use of, or reliance on, the confidential Information by the Receiving Party.
11.
Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of England and Wales, excluding any English Law conflict of
laws principle which would require reference to the laws of any other jurisdiction and the
Parties hereby submit to the exclusive jurisdiction of the English courts.
12.
The Parties agree and acknowledge that monetary damages may not be a
sufficient remedy for any actual or threatened breach of this Agreement and that, in
addition to all other remedies, the Parties shall be entitled to specific performance,
injunctive and other equitable relief.
13.
No amendments, changes or modifications to this Agreement shall be valid
except if the same are in writing and signed by a duly authorized representative of each
of the Parties hereto.
14.
No failure by a Party in exercising any of its rights, powers or privileges
hereunder shall act as a waiver and a single or partial exercise thereof shall not preclude
any further exercise of any right power or privilege.
15.
This Agreement comprises the full and complete agreement of the Parties hereto
with respect to the disclosure of the Confidential Information and supersedes and
cancels all prior communications, understandings and agreements between the Parties
hereto relating to the Confidential Information, whether written or oral, expressed or
implied.
16.
The Parties record and agree that no Party will act as agent or representative of
any of the other Parties.
17.
The disclosure of Confidential Information to the Receiving Party is nonexclusive, and the Disclosing Party may disclose the Confidential Information to others
at any time.
18.
Neither this Agreement, nor any of the rights or obligations under this Agreement,
are assignable or transferable by a Party without the express prior written consent of the
other Party.
19.
Other than the Parties hereto, a person (a “third party”) who is not a party to this
Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999
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(the “Act”) to enforce any terms of this Agreement notwithstanding that any such term
may purport to confer or may be construed as conferring a benefit on such third party.
20.
Each Party hereto may sign identical counterparts of this Agreement with the
same effect as if both Parties hereto had signed the same document. A copy of this
Agreement signed by one Party hereto and delivered by facsimile transmission to the
other party hereto shall have the same effect as the delivery of an original of this
Agreement containing the original signature of such Party.
IN WITNESS WHEREOF, the duly authorised representatives of the Parties have
caused this Agreement to be executed in duplicate on the day and year first above
written.
For and on behalf of
For and on behalf of
DISCLOSING PARTY
RECEIVING PARTY
By:
By:
Title:
Title:
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EXHIBIT A
Description of the Asset
Mengo, Kundji and Bindi (MKB) Licence, onshore Congo
20% Working Interest
Aje Licence, offshore Nigeria
6.502% Working Interest in OML113
Dussafu Marin Production Sharing Contract
33.33% Working Interest
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