Hereford seeks to furnish to the Recipient certain confidential information relating to the affairs of Hereford on the terms and conditions set out in the following;
The Recipient wishes to investigate the business of Hereford and its associated companies to evaluate a business opportunity presented by Hereford and/or its associated companies (the "Permitted Purpose"); and
In connection with the Permitted Purpose the Recipient requires access to certain information relating to Hereford (the "Confidential Information") which shall be provided by Hereford to the Recipient on the terms set out below.
In consideration of the premises and the mutual promises and agreements contained herein, the parties agree as follows:
1. For purposes of this Agreement, “Confidential Information” means Hereford’s written financial statements, including pro forma financial statements, investment track record, participation terms, client lists, trade secrets, patents, and any written, verbal or electronic information provided to the Recipient by Hereford concerning Hereford’s affairs and identified as being confidential material, except to the extent that any such information is: (a) in the public domain or becomes part of the public domain at the time of or after its receipt by the Recipient; (b) already known to the Recipient at the time of its disclosure; (c) disclosed to the Recipient by a third party, without breach by the Recipient or its agents of any obligations of confidentiality to Hereford; or (d) independently developed by the Recipient.
2. The Recipient shall: (a) hold all Confidential Information in trust and confidence and shall not disclose any Confidential Information to any third parties, except on a need-to-know basis to employees, directors, officers, limited partners, attorneys, accountants, consultants, advisors, agents and representatives of the Recipient who agree, or who are subject to an existing agreement or obligation, to maintain the confidentiality of such information, the agreement or obligation being not less onerous than this Agreement; and (b) not use the Confidential Information, other than for the purpose of evaluating the Permitted Purpose.
3. Upon written request by Hereford prior to the Recipient and Hereford entering into any definitive agreement relating to the Permitted Purpose, the Recipient agrees to return to Hereford or destroy, in the Recipient’s sole discretion, all Confidential Information. Notwithstanding the foregoing, the Recipient shall be permitted to retain one copy of the Confidential Information for their internal records in order to comply with legal and regulatory requirements, as well as internal recording keeping policies and procedures.
4. Notwithstanding any contrary provision contained in this Agreement, nothing contained in this Agreement shall require the Recipient or any of its affiliates, or Hereford, to make any offer, or enter into any definitive agreement, relating to the Permitted Purpose.
5. In the event that the Recipient or any of its agents: (a) is required by any judicial or administrative proceeding, or other legal process, to disclose any of the Confidential Information; or (b) otherwise determines in good faith that it is required by law to disclose such Confidential Information, then such disclosure shall not be deemed in breach of this Agreement, when and to the extent so required.
6. Non-Solicitation: the Recipient shall not canvass, solicit or endeavour to entice away from Hereford and its associates any business or prospect introduced to the Recipient, such introduction to be documented by email from Hereford to the Recipient either beforehand or as soon as possible afterwards. Furthermore, should the business or prospect make a direct approach to the Recipient within the timeframe defined below, the Recipient will refer the business or prospect directly to Hereford and have no dealings with the business or prospect. Further, the Recipient and its members shall not, directly or through an agent, solicit or entice members of Hereford to work for the Recipient, or another entity and/or employer.
7. This Agreement and its validity, construction, effect and performance shall: (a) be governed by the laws of England and Wales; and (b) terminate 3 years from the date first written above. Any legal action, suit, or proceeding with respect to this Agreement shall be commenced exclusively in the courts sitting in England and Wales. Each party hereby irrevocably submits to the exclusive jurisdiction of the courts sitting in England and Wales, for the adjudication of any dispute, and irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non convenience, that such party may have to the bringing of any such action, suit, or proceeding in such jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as follows: