Gaither Petroleum Corporation
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT (hereinafter referred to as the "Agreement"), entered into this the 18th day of August, 2017, by and between Gaither Petroleum Corporation (GPC), whose address is 18000 Groeschke Road, Building A1, Houston, Texas 77084, a company organized and existing under the laws of British Virgin Islands (GPC and its representatives are hereinafter referred to as the "Disclosing Party") and
(hereinafter referred to as the "Receiving Party"). The companies named above may also be referred to herein individually as "Party" or collectively as "Parties".
In connection with your analysis of a possible negotiated transaction with Gaither Petroleum Corporation, you have been or will be furnished certain information that is proprietary, non-public or confidential concerning GPC, from GPC or Representatives (as defined below) of GPC. In connection with such analysis, you hereby agree to the following (it being understood that you are also agreeing to cause your affiliates and Representatives to comply with the applicable provisions hereof and to be responsible for compliance by such persons):
1. Definition of Evaluation Material. The term “Evaluation Material” as used in this Agreement shall mean all information, documents, records and data that are non-public, confidential or proprietary in nature that GPC or any of its Representatives furnishes or otherwise discloses to you or any of your Representatives (including any such items furnished prior to the execution of this Agreement), together with all analyses, compilations, studies, memoranda, notes or other documents, records or data (in whatever form maintained, whether documentary, computer or other electronic storage or otherwise) prepared by you or any of your Representatives to the extent they contain or otherwise reflect or are generated from such information, documents, records and data. The term “Evaluation Material” does not include any information that (i) at the time of disclosure or thereafter it is generally available to and known by the public (other than as a result of a disclosure by you or any of your Representatives not permitted hereby), (ii) is or was available to you or in your possession or the possession of your Representatives on a non-confidential basis from a source other than the Disclosing Parties who is not known to you after reasonable inquiry to be prohibited from transmitting the information to you by a contractual, legal or fiduciary obligation to the Disclosing Parties or (iii) is or was independently developed by you without the use of the Evaluation Material.
2. Use of Evaluation Material. The Evaluation Material will be used solely for the purpose of evaluating and negotiating a possible transaction between you and GPC. Unless and until you have completed such a transaction with GPC, all the Evaluation Material will be kept confidential by you and will not be disclosed to any other persons in any manner; provided that you may disclose Evaluation Material or portions thereof to your Representatives who need to know such information for the purpose of evaluating and negotiating a possible transaction involving you and GPC (it being understood that you shall inform such Representatives of the confidential nature of such information and shall direct them to treat such information confidentially in accordance with this Agreement).
3. Legally Required Disclosures. In the event that you or any of your Representatives is requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or by law, governmental proceeding or stock exchange rule) to disclose any of the Evaluation Material (or any disclosure otherwise prohibited by paragraph 5), you shall, except to the extent prohibited by law, provide GPC with prompt, and if at all possible, prior written notice of such request or requirement (together with a copy of the material proposed to be disclosed) and you shall cooperate with GPC so that GPC may seek a protective order or other appropriate remedy or, if it so elects, waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or GPC waives compliance with the provisions hereof, you or your Representative, as the case may be, may disclose only that portion of the Evaluation Material or information that is legally required to be disclosed and shall exercise all reasonable efforts to obtain assurance that confidential treatment will be accorded the information so disclosed.
4. Return or Destruction of Materials. Upon the written request of GPC, you will return promptly to GPC all copies of the Evaluation Material then in your possession or in the possession of any of your Representatives, and any copies, notes or extracts thereof, without retaining any copy thereof, except that you may destroy promptly (in lieu of returning) all copies of any analyses, compilations, studies or other documents, records or data prepared by you or your Representatives to the extent such contain or otherwise reflect or are generated from the Evaluation Material, and if you choose to destroy such copies, you will certify to GPC that any such destruction has been accomplished; provided in each case that an appropriate person within your organization may retain one copy of the Evaluation Material, subject to the provisions of this Agreement, if required to comply with internal record retention policies or regulatory considerations, in which case, the confidentiality provisions of this Agreement will continue to apply to such Evaluation Material for so long as it is retained by such person or any other of your Representatives.
5. Nondisclosure of Possible Transaction. Without the prior written consent of GPC, and except as required by law, government proceeding or stock exchange rule, you will not, and will direct and cause your Representatives not to, disclose to any person (i) that Evaluation Material has been made available, (ii) that any investigation, discussions or negotiations are or have been taking place concerning a possible transaction between GPC or any of its affiliates and you or any of your affiliates, (iii) that you or any of your affiliates are or have been considering or reviewing a transaction involving or relating to GPC or (iv) the terms, conditions or other facts with respect to any such possible transaction or actions, including the status thereof.
6. Contacts with Personnel. Until eighteen (18) months from the date of this Agreement, you agree not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer, director or employee of GPC or any of its subsidiaries regarding its business, assets, operations, prospects or finances, except with the express permission of a duly authorized executive officer of GPC. It is understood that Mr. James P. Reynolds, Vice President of Business Development for GPC or such other person as may be designated in writing by GPC will arrange for appropriate contacts for due diligence purposes. It is further understood that all (a) communications regarding a possible transaction, (b) requests for additional information, (c) requests for facility tours or management meetings and (d) discussions or questions regarding procedures will be submitted or directed to Mr. James P. Reynolds, or such other person as may be designated in writing by GPC. You further agree that for a period of eighteen (18) months from the date hereof, you will not solicit for employment or employ any officer, director or employee of GPC or its subsidiaries who was contacted during such evaluation or who was identified by you as a result of your evaluation or otherwise in connection with a possible transaction involving GPC; provided, that this prohibition shall not apply to (w) solicitations made to the public or the industry generally, (x) contacts initiated by an employee of GPC, (y) solicitations of a person who ceases to be employed by GPC or its subsidiaries prior to such contact or (z) the employment of any person following the contacts or solicitations permitted by the preceding clauses (w), (x) and (y).
7. No Representation or Warranty. You understand that neither GPC nor any of its Representatives have made or make any representation or warranty as to the accuracy or completeness of the Evaluation Material. You further agree that neither GPC nor its Representatives shall have any liability to you or any of your Representatives resulting from the use of the Evaluation Material. Only those representations or warranties that are made in a Definitive Transaction Agreement when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Transaction Agreement, will have any legal effect.
8. Definitive Transaction Agreement. You also understand and agree that no contract or agreement providing for a transaction between GPC and you or your affiliates shall be deemed to exist unless and until a definitive transaction agreement has been executed and delivered by you and each of the other parties thereto (“Definitive Transaction Agreement”), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with such a transaction (other than under this Agreement) unless and until a Definitive Transaction Agreement has been executed and delivered by you and each of the other parties thereto. It is also agreed that unless and until a Definitive Transaction Agreement between GPC and you with respect to a transaction involving GPC has been executed and delivered, none of you, GPC or its equity holders has any legal obligation of any kind whatsoever with respect to any such transaction (other than under this Agreement). Without limiting the generality of the foregoing, (i) under no circumstances will any oral understanding with respect to such a transaction or any partial performance or other actions by you or GPC with respect to such a transaction, other than the execution and delivery of a Definitive Transaction Agreement, be a binding contract to effect such a transaction and (ii) you agree that you shall not bring any claim against GPC or any other person based upon either this Agreement, subsequent negotiations, partial performance or other actions relating to such a transaction as a result of a failure to agree on or enter into a Definitive Transaction Agreement or to complete such a transaction (other than any such claim brought under a Definitive Transaction Agreement or any enforceable provisions of a letter of intent or other agreement executed by the parties with respect to the proposed transaction). For purposes of this paragraph and except as otherwise specifically agreed upon in writing, the term “Definitive Transaction Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or oral offer or bid or any written or oral acceptance thereof. You further understand that GPC shall be free to conduct any process for the proposed transaction as it in its sole discretion shall determine and that no representation has been made to and no legal, fiduciary or other duty exists with respect to you as to the manner in which any such process is conducted. GPC reserves the right, in its sole discretion, to (a) decline to provide any requested information to you, (b) discontinue consideration of a transaction with you at any time, (c) reject any and all proposals made by you or any of your Representatives with regard to any transaction, (d) terminate discussions and negotiations with you at any time and for any reason and (e) conduct the process relating to a possible transaction with you or change the procedure for conducting the process. This Agreement does not constitute or create any obligation of GPC to provide any Evaluation Material or other information to you, but merely defines the rights, duties and obligations of the parties with respect to Evaluation Material to the extent it may be disclosed or made available. Under no circumstances is GPC obligated to disclose or make available any information, including any Evaluation Material, that it in its sole discretion determines not to disclose. Neither this paragraph nor any other provision in this Agreement can be waived or amended except by written consent of GPC, which consent shall specifically refer to this paragraph (or such other provision) and explicitly make such waiver or amendment.
9. Remedies. You agree that money damages would not be a sufficient remedy for any breach of this Agreement and that GPC shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to GPC at law or in equity. You agree to reimburse GPC for all costs and expense, including reasonable attorneys’ fees, incurred by GPC in enforcing your obligations hereunder, in the event of a final determination that a breach of this Agreement has occurred.
10. Access. In the event you desire physical access to any of GPC’s properties, you will agree to make such request to GPC in writing providing therewith a current insurance certificate naming GPC an additional insured. In return for arranging access to the properties or leases you agree to indemnify, defend and hold harmless GPC, its affiliates and subsidiaries and each of their Representatives from and against any and all liabilities, claims and causes of action for personal injury, death or property damage occurring on or to such property as a result of your entry onto the premises, except for any such liabilities, claims and causes of action for personal injury, death or property damage finally judicially determined to have resulted solely from the gross negligence or willful misconduct of GPC. You agree to comply fully with all rules, regulations and instructions issued by GPC regarding your actions while upon, entering or leaving the property of GPC.
11. No Waiver. It is further understood and agreed that no failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement represents the entire understanding of the parties with respect to the matters referred to herein and supersedes all prior understandings, written or oral, between the parties with respect thereto. No provision in this Agreement can be waived or amended except by written consent of GPC, which consent shall specifically refer to the affected provision and explicitly make such waiver or amendment.
12. Person; Representatives; Affiliates. As used in this Agreement, (i) the term “person” will be interpreted broadly to include, without limitation, any corporation, company, group, partnership, limited liability company, other entity or individual, (ii) the term “Representatives,” used with respect to a person, shall include the directors, officers, members, employees, representatives, agents, attorneys, consultants, contractors, accountants, financial advisors and other advisors, and banks and other potential financing sources of or to such person, and (iii) the term “affiliate” when used with respect to a person, shall have the meaning given to it in Rule 12b-2 under the Securities Exchange Act of 1934.
13. Notices. All notices to be given to a party hereunder shall be in writing and delivered personally, by overnight courier or by facsimile, addressed to the President of such party, with a copy to the General Counsel of such party, if any, at the corporate headquarters of such party.
14. Governing Law. This Agreement is for the benefit of GPC and you (but not for the benefit of your Representatives) and will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to the choice of law rules thereof. You agree that any legal action or proceeding relating to your obligations under or arising out of this Agreement must be brought only to the exclusive jurisdiction of the courts of the State of Texas or the federal courts located in the State of Texas.
15. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.
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