Webinar Non-Disclosure Agreement

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  4. accept and agree to be bound by the terms and conditions of the Confidentiality Agreement set forth below.

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CONFIDENTIALITY AGREEMENT

In consideration of Markermeer Finance B.V. (the “Company”) and/or its Representatives agreeing to make available to you (the “Recipient”) certain information, in connection with the senior facilities agreement dated 30 January 2020, as amended from time to time, to which the Company is a party (the “Transaction”), by clicking on the “AGREE” button at the bottom of this window on this site, you (as used herein, “you” shall mean you and your institution) expressly acknowledge and irrevocably agree (and each time you enter this workspace hereafter, you reaffirm such acknowledgement and agreement) as follows:

(A)      CONFIDENTIALITY

1.              Confidentiality Undertaking

The Recipient undertakes:

  • 1.1           to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by paragraph (A)2 below and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to the Recipient’s own confidential information;
  • 1.2           to keep confidential and not disclose to anyone except as provided for by paragraph (A)2 below the fact that the Confidential Information has been made available to you; and
  • 1.3           to use the Confidential Information only for the Transaction.

2.              Permitted Disclosure

The Company agrees that the Recipient may disclose such Confidential Information and such of those matters referred to in paragraph (A)1.2 above as the Recipient shall consider appropriate:

  • 2.1           to the Recipient’s Representatives, if any person to whom the Confidential Information is to be given pursuant to this paragraph (A)2.1 is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information, except that there shall be no such requirement to so inform the Recipient’s Representatives, which are subject to professional obligations to maintain the confidentiality of the information or are otherwise bound by requirements of confidentiality in relation to the Confidential Information, provided however that, the Recipient will be responsible for any breach of obligations under this undertaking by its Representatives;
  • 2.2           to any person to whom information is required or requested to be disclosed by any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation; and
  • 2.3           with the prior written consent of the Company.

3.              Notification of Disclosure

The Recipient agrees (to the extent permitted by law and regulation) to inform the Company:

  • 3.1           of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (A)2.2 above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
  • 3.2           upon becoming aware that Confidential Information has been disclosed in breach of this undertaking.

4.              Return of Copies

If the Company so requests in writing, the Recipient shall, at its option, return or destroy all Confidential Information supplied to the Recipient by the Company and/or its Representatives, and destroy or permanently erase (to the extent technically practicable) all copies of Confidential Information made by the Recipient and use the Recipient’s reasonable endeavours to ensure that anyone to whom the Recipient has supplied any Confidential Information destroys or permanently erases (to the extent technically practicable) such Confidential Information and any copies made by them, in each case save to the extent that the Recipient or its Representatives 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 or in accordance with internal policy, or where the Confidential Information has been disclosed under paragraph (A)2.2 above, provided that, you do not attempt to retrieve any such retained Confidential Information.

5.              Continuing Obligations

The obligations in this undertaking are continuing and, in particular, shall survive the termination of any discussions between the Recipient and the Company. Notwithstanding the previous sentence, the obligations in Part A of this undertaking shall cease on the date falling twenty-four (24) months after the date of this undertaking.

6.              Consequences of Breach

The Recipient acknowledges and agrees that the Company may be irreparably harmed by the breach of the terms of this undertaking and that damages may not be an adequate remedy. The persons entitled to the benefit of this undertaking may be granted an injunction or specific performance for any threatened or actual breach of the provisions of this undertaking by the Recipient.

7.              ENTIRE AGREEMENT; No Waiver; Amendments, etc

  • 7.1           This undertaking constitutes the entire agreement between the Company and the Recipient in relation to the Recipient’s obligations regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
  • 7.2           No failure to exercise, nor any delay in exercising any right or remedy under this undertaking will operate as a waiver of any such right or remedy or constitute an election to affirm this undertaking. No election to affirm this undertaking will be effective unless it is in writing. No single or partial exercise of any right or remedy will prevent any further or other exercise or the exercise of any other right or remedy under this undertaking. 
  • 7.3           The terms of this undertaking and the Recipient’s obligations under this undertaking may only be amended or modified by written agreement between the Company and the Recipient.
  • 7.4           If any provision of this undertaking is held to be invalid or unenforceable, that provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in this undertaking, but without invalidating any of the remaining provisions.

8.              Inside Information 

The Recipient acknowledges 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 Recipient undertakes not to use any Confidential Information for any unlawful purpose. You should check with your internal legal and/or compliance officers regarding your responsibility with respect to such information and you may notify them of this undertaking and any discussions between us.

9.              Nature of Undertakings 

The undertakings given by the Recipient under Part A of this undertaking are given for the benefit of the Company and its Affiliates.

(B)       MISCELLANEOUS

10.           THIRD PARTY RIGHTS

  • 10.1        Subject to this paragraph (B)10 and to paragraph (A)9, a person who is not a party to this undertaking has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the benefit of any term of this undertaking.
  • 10.2        The Company’s Affiliates may enjoy the benefit of the terms of paragraph (A)9 subject to and in accordance with this paragraph (B)10 and the provisions of the Third Parties Act.
  • 10.3        Notwithstanding any provisions of this undertaking, the parties to this undertaking do not require the consent of any Company Affiliate to rescind or vary this undertaking at any time.

11.           GOVERNING LAW AND JURISDICTION 

  • 11.1        This undertaking and the agreement constituted by the Recipient’s acknowledgement of its terms and any non-contractual obligations arising out of or in connection with it are governed by English law.
  • 11.2        The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this undertaking (including a dispute relating to any non-contractual obligation arising out of or in connection with this undertaking).

12.           DEFINITIONS 

In this undertaking (including the acknowledgement set out below):

“Affiliate” of a person means any entity that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such person.

“Confidential Information” means all information relating to the Transaction, the Company and its Affiliates, which is provided to the Recipient by the Company and/or its Representatives, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

  • is or becomes public information other than as a direct or indirect result of any breach by the Recipient of this undertaking; or

  • is identified in writing at the time of delivery as non-confidential by the Company; or

  • is known and has been lawfully obtained by the Recipient before the date the information is disclosed to the Recipient by the Company and/or its Representatives, or is lawfully obtained by the Recipient after that date, from a source which is, as far as the Recipient is aware (having made reasonable enquiries), unconnected with the Company and its Representatives and which, in either case, as far as the Recipient is aware (having made reasonable enquiries), has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

“Control” and its derivatives means: (i) the power to direct the management or policies of an entity, whether through ownership of voting securities or by contract relating to voting rights or corporate governance, regulation or otherwise, or (ii) to own more than fifty percent (50%) of the outstanding voting securities or other ownership interests of the entity.

“Representatives” means, in relation to a person, its Affiliates and its and such Affiliates’ respective employees, officers, directors, consultants and advisors.