Confidentiality undertaking
1. THE PURPOSE OF THIS AGREEMENT
1.1 In relation to one or more of the Properties, the Buyer has expressed an interest in acquiring (i) certain business and assets held by the relevant OpCos; and (ii) certain real estate assets held by the relevant PropCos. In this Agreement, that potential purchase is referred to as the ProposedTransaction.
1.2 Capitalised terms and expressions are defined in the main body of this Agreement or in the schedule (Schedule).
1.3 References to the singular includes the plural and vice versa.
1.4 We act as agent for the Sellers in relation to the Proposed Transaction. This Agreement sets out undertakings by you about the use of the Information. You are giving these undertakings in favour of the Sellers and the Sellers’ Groups, who may rely on these undertakings directly in return for the Sellers and the Sellers’ Groups agreeing to make the Information available to you.
2. CONFIDENTIALITY UNDERTAKINGS ATTACHING TO INFORMATION
2.1 You shall hold the Information in strict confidence and may not, directly or indirectly, disclose it to any person other than to another Recipient who has entered into a direct confidentiality undertaking with the Sellers in relation to the Proposed Transaction.
2.2 For these purposes, 'disclosing' Information includes making it available in any way, whether deliberately or not.
2.3 You shall only use the Information for the purpose of the Proposed Transaction.
2.4 In this Agreement the obligations in this paragraph 2 are referred to as the Undertakings.
3. EXCEPTIONS TO THE CONFIDENTIALITY UNDERTAKINGS IN PARAGRAPH 2
3.1 The Undertakings and the provisions in paragraph 2 shall not apply to Information to the extent that any of the following circumstances apply to that Information:
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the Information is already in the public domain when it is first disclosed to you;
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the Information subsequently enters the public domain, other than through a breach of any of the Undertakings by you;
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when the Information was first disclosed to you, it was already in your lawful possession;
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after it is first disclosed to you, you lawfully receive the Information from a third party who does not owe the Sellers, or any of their respective Connected Persons, an obligation of confidence in relation to it; or
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the Information is required to be disclosed by applicable law, rule, requirement or official request of any regulatory or governmental authority or stock exchange to which you are subject. If you reasonably believe that this subparagraph (e) applies, you shall, as far as it is practicable and lawful to do so, first consult the Sellers to give the Sellers an opportunity to contest the disclosure and then take into account the Sellers' reasonable requirements about the proposed form, timing, nature and extent of the disclosure.
3.2 If you are unable to consult with the Sellers before disclosure is made pursuant to paragraph 3.1(f), you shall, to the extent reasonably practicable and not prohibited by such applicable law, rule or requirement, inform the Sellers of the form, timing, nature and extent of the disclosure as soon as reasonably practicable after such disclosure is made.
4.BUYER TO COMPLY WITH THIS AGREEMENT
4.1 This paragraph 4 is only applicable where you are entering into this Agreement on behalf of the Buyer.
4.2 The Buyer shall ensure that each Recipient is aware of the terms of this Agreement and complies with its terms as if it had itself agreed to its terms, unless the Recipient has already entered into a direct confidentiality undertaking with the Sellers in relation to the Proposed Transaction in a form which is acceptable to the Sellers.
4.3 The Buyer shall be responsible for any breach of the terms of this Agreement by any Recipient as if the Buyer were the party that had breached them unless the Recipient has entered into a direct confidentiality undertaking with the Sellers in relation to the Proposed Transaction in a form which is acceptable to the Sellers.
4.4 The Buyer confirms that in relation to the Proposed Transaction and its entry into this Agreement, it is acting as principal and not as nominee, agent or broker for any other person and that it will be responsible for its own costs whether incurred by it or its Recipients in connection with the Proposed Transaction (whether or not it proceeds) and in complying with the terms of this Agreement.
5. THE SELLERS MAY ASK FOR INFORMATION TO BE DESTROYED OR RETURNED
5.1 If the Sellers or any Authorised Person asks you in writing to destroy Information or return Information to the Sellers, paragraph 5.2 shall apply, subject to paragraph 5.3.
5.2 Within 20 days of receiving the request, you shall destroy or return to the Sellers (at your option), each original and every copy of any document or other materials which are in a form reasonably capable of delivery and that contain the Information (other than Derivative Information) and ensure the destruction of:
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all originals and copies of all documents and material that contain Information (other than Derivative Information) which are not so returned; and
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all Derivative Information,
and confirm to the Sellers in writing that this paragraph 5.2 has been complied with.
5.3 You may retain any Information to the extent it is:
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required to do so by any applicable law, rule or requirement of any regulatory or governmental authority or stock exchange, including the rules of a professional body or by bona fide internal compliance or audit policies and procedures; and/or
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contained in any electronic file created pursuant to any routine backup or archiving procedure so long as such file is not generally accessible beyond the need for disaster recovery or similar operations.
5.4 Any Information retained under paragraph 5.3 shall continue to be held in compliance with this Agreement.
6. NO REPRESENTATION OR WARRANTY GIVEN BY THE SELLERS OR THEIR RESPECTIVE CONNECTED PERSONS
6.1 You understand that the Information does not purport to be all-inclusive and that neither the Sellers nor any of their respective Connected Persons makes any representation or warranty as to its accuracy, reliability or completeness.
6.2 You agree that neither the Sellers nor any of their respective Connected Persons:
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has any obligation to provide Information, further information, to update the Information, or to correct any inaccuracies in it;
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has any obligation to enter into or continue discussions or negotiations in respect of the Proposed Transaction; or
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has any liability to you or any other person resulting from the use of Information by you.
6.3 The statements in paragraphs 6.1 and 6.2 are made subject to the terms of any definitive written and legally binding agreement or agreements entered into between the Buyer or any of the Buyer's Affiliates and the Sellers or any Connected Person of the Sellers in relation to the Proposed Transaction (if and when signed).
6.4 This paragraph 6 shall not exclude any liability for, or remedy in respect of, fraudulent misrepresentation.
7. RESTRICTIONS ON CONTACT WITH EMPLOYEES, CUSTOMERS, SUPPLIERS AND OTHERS
7.1 You shall:
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direct all communications to the Sellers or any of their respective Connected Persons relating to the Proposed Transaction only to the Authorised Persons or any persons expressly identified in writing for such purposes by any of the Authorised Persons; and
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not make, or have, any contact with any officer, manager or employee of any member of the Sellers’ Groups or the Manager in relation to the Proposed Transaction, other than anyone identified in writing by an Authorised Person or the Sellers for this purpose. Nothing in this Agreement shall prevent you from conducting any commercial, market or other similar diligence process in connection with the Proposed Transaction as long as it is conducted through a third party on a no-names basis.
7.2 For a period of one year after the date of this Agreement, you shall not directly or indirectly, without the Sellers' prior written consent:
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subject to paragraphs 7.1(b) and 7.3, make or have any contact, in relation to the Proposed Transaction, with any person who is currently a shareholder, director, employee, customer, contractor or sub-contractor of, or supplier of or lender to, any member of the Sellers’ Groups or of the Manager; or
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solicit, engage, employ (whether paid or unpaid) or offer to employ, any Restricted Person. For these purposes, it does not matter whether that person knows of any Information, or would commit a breach of his or her contract of employment by reason of his or her leaving their employment; or
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undertake direct targeted activity which is principally directed at customers or clients of the Business of whom it becomes aware through the provision of Information. The restriction in this paragraph shall not prevent you from pursuing any general marketing measures that it may wish to carry out addressed to the same type of customers, clients or accounts or developing any customers, clients or accounts which it retained prior to the date of this Agreement, provided that in neither case shall you use or permit the use of any Information for such purposes.
7.3 You may contact any of those persons listed in paragraph 7.2(a) in the ordinary course of its existing business, but only if it does not refer in any way to the Proposed Transaction.
7.4 Paragraph 7.2(b) shall not apply to a recruitment offer made to or employment of any person who contacts you solely on his or her own initiative, or in response to a bona fide employment advertisement without there having been any previous contact with you in relation to the relevant post.
8. NO DUTY OF CARE OWED BY THE SELLERS OR CONNECTED PERSONS
Subject to the terms of any definitive written agreement or agreements entered into between the Buyer or a Buyer's Affiliate and the Sellers or any Connected Person of the Sellers, neither the Sellers nor any of their respective Connected Persons shall owe any duty of care to you or to any other person.
9. DAMAGES NOT NECESSARILY AN ADEQUATE REMEDY
9.1 You acknowledge that a person with rights under this Agreement may be irreparably harmed by any breach of its terms, and that damages alone may not necessarily be an adequate remedy.
9.2 You acknowledge that, without affecting any other rights or remedies if a breach of the terms of this Agreement occurs or is threatened, the remedies of injunction, specific performance and other equitable relief, or any combination of these remedies, may be available.
10. THE SELLERS MAY ASSIGN RIGHTS UNDER THIS AGREEMENT
10.1 If a third party acquires all, or a material part, of the issued share capital, business or assets of the any of the Sellers or any member of the Sellers’ Groups:
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the rights of the Sellers under this Agreement may be assigned or transferred in whole or in part to that third party; and
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that third party may enforce this Agreement to the same extent and in the same manner as the Sellers may enforce it.
10.2 If the rights of any of the Sellers under this Agreement are assigned or transferred in whole or in part to a third party, the Sellers shall notify the Buyer of such assignment or transfer as soon as reasonably practicable.
11. NO WAIVER
No failure or delay by any party in exercising any right under this Agreement shall operate as a waiver of the right, and no single or partial exercise of any right under this Agreement shall preclude any further exercise of it.
12. TERM
Unless otherwise expressly limited, the terms of this Agreement shall continue until the second anniversary of the date of acceptance of this Agreement (and you and any other Recipients shall be treated as having the same date of acceptance, being the earliest date of acceptance by one of those parties) unless the Buyer or one of the Buyer's Affiliates completes the Proposed Transaction in which event the terms of this Agreement will lapse.
13. INVALID TERMS TO BE STRUCK OUT
If and to the extent that any provision of this Agreement is held to be invalid or unenforceable, it shall be given no effect and shall be deemed not to be included in this Agreement, but everything else in this Agreement shall continue to be binding.
14. VARIATION OF TERMS OF THIS AGREEMENT
The parties may by agreement in writing terminate this Agreement or vary its terms.
15. TERMS ON WHICH THIRD PARTIES MAY ENJOY RIGHTS UNDER THIS AGREEMENT
15.1 Each of the Sellers and each of the Sellers' respective Connected Persons and the Buyer's Affiliates may, under the Contracts (Rights of Third Parties) Act 1999, enforce the terms of this Agreement, as varied from time to time under paragraph 14. To the extent that the terms of this Agreement are varied, the rights of any person to enforce the terms of this Agreement under this paragraph 15 shall be qualified accordingly.
15.2 Such a person may enforce those terms subject to, and in accordance with the terms of paragraphs 18 and 19.
15.3Other than as provided in paragraph 10 and this paragraph 15, a person who is not a party to this Agreement shall have no right to enforce any of its terms.
16. GOVERNING LAW TO BE ENGLISH LAW
Each of this Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
17. ENGLISH COURTS TO HAVE JURISDICTION
The English courts shall have exclusive jurisdiction in relation to all Disputes. Each party waives any objection to the exercise of that jurisdiction.
18. CHRISTIE & CO
Christie & Co is registered under the Data Protection Act 1998 and General Data Protection Regulation 2016 (GDPR) under registration number Z8293541. All personal data about you will be treated as private and confidential by Christie & Co. Christie & Co will use the personal data supplied by you only for purposes associated with legitimate business interests such as the administration of the (potential) business relationship. Christie & Co follows the rules of GDPR and the terms of its registration when dealing with your personal data and it has a formal complaints procedure, a copy of which is available on request or on its website at https://www.christie.com/complaints/
19. WHOLE AGREEMENT
19.1 This Agreement sets out the whole agreement between the Sellers and the Buyer (and you and the Recipients) in respect of the subject matter of this Agreement. It supersedes any previous draft, agreement, arrangement or understanding between them, whether in writing or not, relating to its subject matter.
19.2 Every term or condition implied by law in any jurisdiction in relation to the subject matter of this Agreement shall be excluded to the fullest extent possible, and to the extent that it is not possible to exclude any such term or condition, the Sellers and the Buyer and any other party each irrevocably waives any right or remedy in respect of it.
19.3 Nothing in this paragraph shall limit any liability for fraud.
20. COUNTERPARTS
This Agreement may be accepted in any number of e-counterparts, and by each party on separate e-counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Acceptance of the terms set out in an e-counterpart of this Agreement by electronic means shall be an effective mode of delivery.
By clicking on the "Accept" button below, you acknowledge that you have read, understood and agree, on your own behalf and on behalf of the organisation you represent, to the above Terms and Conditions.
Schedule
In this Agreement, the following words and expressions shall have the following meanings:
Agreement means this agreement;
Authorised Persons means Jon N. Deverick, Daniel Smith and Oliver Haunch (each of Grant Thornton UKLLP), each an Authorised Person;1
Businesses means the businesses of operating care homes carried on by OpCos from the Properties (orany one or more of them as the context may require);
Buyer means the proposed buyer as part of the Proposed Transaction;
Buyer's Affiliate means any subsidiary undertaking of the Buyer, any parent undertaking of the Buyer(whether direct or indirect), any subsidiary undertaking of such parent undertaking, in each case from time to time;
Connected Person means, in relation to the relevant person, any person falling within any of the followingcategories:
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a subsidiary undertaking of that person;
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a parent undertaking of that person (whether direct or indirect);
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a subsidiary undertaking of a parent undertaking within (b);
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in the case of the Sellers:
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the Manager;
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Link Asset Services (London) Limited;
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any provider of debt or equity finance to any of the Sellers or any parent undertaking of any of the Sellers (whether direct or indirect);
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any parent undertaking or subsidiary undertaking of any person within (i), (ii) or (iii);
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an adviser, agent or representative of that person or any person within (a), (b), (c) or (d);
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an officer, employee or partner of that person, or of any person within (a), (b), (c), (d) or (e);
Derivative Information means all documents, disks or other media created by you or on your behalf,including, without limitation, any analyses, compilations, notes, studies or accountants' or other third party reports which contain or reflect or are generated from the Information;
Disputes means all disputes arising out of, or in connection with, this Agreement including, withoutlimitation:
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claims for set-off and counterclaims;
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disputes arising out of, or in connection with, the creation, validity, effect, interpretation, performance or non-performance of, or the legal relationships established by, this Agreement; and
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disputes arising out of, or in connection with, any non-contractual obligations arising out of, or in connection with, this Agreement;
Finance Provider means a provider or prospective provider of debt finance/ debt or equity finance/finance to the Buyer or any of the Buyer’s Affiliates in connection with the Proposed Transaction, other than any such finance provider who has entered into a direct confidentiality undertaking with the Sellers in relation to the Proposed Transaction on terms acceptable to the Sellers;
GDPR has the meaning given in paragraph 18;
Information means:
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the fact that Properties and/or the Businesses may be sold, this Agreement, the existence and contents of the discussions and negotiations between the Buyer and/or any potential Finance Provider and/or the Sellers (or their respective Recipients or Connected Persons) relating directly or indirectly to the Proposed Transaction (whether or not in writing or in a visual or electronic form or in magnetic or digital form); and
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any information of any nature and in any form, (including whether given in writing or orally or in a visual or electronic form or in magnetic or digital form) relating directly or indirectly to the Properties, the Businesses, the Sellers’ Groups, their respective businesses or the Proposed Transaction and supplied by or on behalf of any of the Sellers or their respective Connected Persons to you. Information includes all copies of any such information and all Derivative Information;
Manager means the management company engaged by the OpCos to manage the Businesses, details ofwhich will be available to the Buyer in the “Further Information” folder located in the “Offer Process” tab of the data site following acceptance of the terms of this Agreement by the Buyer;
OpCos means the operating companies which, between them, operate the Businesses and own the assetsincluded in the Proposed Transaction, details of which will be available to the Buyer in the “Further Information” folder located in the “Offer Process” tab of the data site following acceptance of the terms of this Agreement by the Buyer;
PropCos means the property holding companies which, between them, own the Properties included inthe Proposed Transaction, details of which will be available to the Buyer in the “Further Information” folder located in the “Offer Process” tab of the data site following acceptance of the terms of this Agreement by the Buyer;
Properties means the care homes owned by the Propcos at which the Businesses are operated by theOpCos, details of which will be available to the Buyer in the “Further Information” folder located in the “Offer Process” tab of the data site following acceptance of the terms of this Agreement by the Buyer;
Proposed Transaction has the meaning given in paragraph 1.1 of this Agreement;
Recipient means (i) the Buyer, (ii) the Buyer's Affiliates, (iii) any Finance Provider and (iv) each director,officer, partner, agent, employee or consultant of each respective person referred to at (ii) to (iii) inclusive above;
Restricted Person means any director, officer or employee of any member ofthe Sellers’ Groups or ofthe Manager, with whom you come into contact, or in respect of whom you are provided information, in connection with the Proposed Transaction;
Schedule means this schedule;
Sellers means each of the relevant OpCos and PropCos (as applicable);
Sellers’ Groups means the Sellers and their respective Connected Persons falling within limbs (a), (b) or(c) of the definition of Connected Persons only (each a “member of the Sellers' Groups");
subsidiary undertaking and parent undertaking are each to be construed in accordance withsection 1162 (and Schedule 7) of the Companies Act 2006 and, for the purposes of this definition, a subsidiary undertaking shall include any person the shares or ownership interests in which are subjectto security and where the legal title to the shares or ownership interests so secured are registered in the name of the secured party or its nominee pursuant to such security;
Undertaking has the meaning given to it in paragraph 2.4; and
You means the user entering this data site (for and on behalf of his or her employer, if applicable), beingone of the following parties: (i) Buyer, (ii) Buyer’s Affiliate, (iii) a Finance Provider, and/or (iv) a Recipient.