[DATE]
Attention :
Dear Sir,
[ ] (THE “pROJECT”)
In connection with your evaluation of the feasibility of participating in, or providing certain services (the “Purpose”) to, [COMPANY A] (the “Company”) and/or its Affiliates in relation to the Project, you and your Affiliates (the “[AFFILIATES]”) may receive certain information which is non-public, confidential or proprietary in nature. That information and any other information (in whatever form, including 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) concerning the Company, the Project or the Purpose, which is furnished to you by the Company or any of its Affiliates (defined below) or a party authorized by the Company at any time on, before or after the date of this Agreement, together with analyses, compilations or other materials prepared by the [AFFILIATES] which contain or otherwise reflect such information or your review of or interest in the Purpose (“Morgan Stanley Work Product”) are hereinafter referred to as the “Confidential Information.” In consideration of the disclosure of the Confidential Information by the Company, you agree that:
1. You will not, without the prior written consent of the Company, use, either directly or indirectly, any of the Confidential Information except in connection with the proposed Purpose.
2. You will not reveal the Confidential Information except to (i) other members of the [AFFILIATES] (the “Morgan Stanley Recipients”) who need to know the Confidential Information for the Purpose and who are informed by you of the confidential nature of the Confidential Information and (ii) any professional advisors of a Morgan Stanley Recipient provided that they are advised of this Agreement and the relevant Morgan Stanley Recipient is satisfied that they will act in accordance herewith. [You agree to be responsible for any breach of this Agreement by any Morgan Stanley Recipient to whom you have disclosed the Confidential Information.]
3. Without the Company’s prior written consent, you shall not disclose to any person (except as otherwise expressly permitted herein) the fact that the Confidential Information has been made available to you, that discussions are taking place between the Company and you concerning the Project or the Purpose, or any of their terms, conditions or other facts with respect thereto (including the status thereof), or that the Purpose has been consummated.
4. This Agreement will not apply to any portion of the Confidential Information that (i) is or becomes generally available to the public on a non-confidential basis through no breach of this Agreement by you or your Representatives, (ii) is already in the possession of the [AFFILIATES] prior to its receipt from the Company pursuant to this Agreement or (iii) is or becomes available to you from a source other than the Company or their Representatives, which source is, to the best of your knowledge, not prohibited from disclosing such Confidential Information to you by a contractual, legal or fiduciary obligation to the Company, or (iv) is independently developed by you without reference to any Confidential Information.
5. If you are requested or required by any law, regulation, regulatory or supervisory authority having jurisdiction over you to disclose any Confidential Information, you will promptly notify the Company (where reasonably practicable to do so and not contrary to any law, court or judicial, governmental, supervisory or regulatory body) of such request or requirement so that the Company may seek an appropriate injunction or waive compliance with the provisions of this Agreement. If, after such notice is provided, you are, in the opinion of your counsel (including your in-house counsel), compelled to disclose the Confidential Information, you may disclose that portion of the Confidential Information which your counsel advises you that you are compelled to disclose. You shall further notify the recipient that the Confidential Information is subject to confidentiality undertakings.
6. In the event that any member of the [AFFILIATES] enters into any underwriting agreement, placement agreement or other similar agreement in connection with an offering or sale of securities by the Company or any of its subsidiaries, nothing in this Agreement shall be deemed to (i) restrict or affect the rights or ability of any member of the [AFFILIATES] to comply with all applicable disclosure laws, regulations and principles in connection with such offering or sale of securities, (ii) restrict the ability of any member of the [AFFILIATES] to share information with other underwriters participating in such offering or sale of securities, (iii) prevent any member of the [AFFILIATES] from retaining documents or other information in connection with due diligence, including any documents or other information disclosed to the [AFFILIATES] hereunder or (iv) restrict or affect the rights or ability of any member of the [AFFILIATES] to use any such documents or other information in investigating or defending itself against allegations or claims made or threatened by purchasers, regulatory authorities or others in connection with such an offering or sale of securities.
7. In the event that discussions with you concerning the Purpose are discontinued or your participation in the Purpose is otherwise terminated, you shall return to the Company, upon its request, all copies of the written Confidential Information, except for Morgan Stanley Work Product, that were furnished to you by or on behalf of the Company. Morgan Stanley Work Product, oral Confidential Information and any written Confidential Information not so requested and returned, will be held and kept by the relevant members of the [AFFILIATES], subject to the terms of this Agreement or destroyed to the extent practicable and permitted by law.
8. You acknowledge and agree that none of the Company, or the entity or entities (including any Affiliate of the Company) which is or are the subject of the Purpose or the Project, or any of their respective directors, officers, employees, affiliates, agents, auditors, attorneys, consultants or advisors makes any representation or warranty (express or implied) as to, or assumes any responsibility for, the accuracy, reliability or completeness of (i) any assumptions on which the Confidential Information is based, or (ii) any information which is obtained from any third-party source whatsoever, or (iii) any business or market projections, business or markets forecasts or other forward-looking statements or opinions; provided however that the entity or entities which is or are the subject of the Purpose or the Project shall warrant the correctness of any information (in each case as at the date as relevant to such information) which each such entity provides in relation to each such entity’s own status, internal affairs and operations and which is within the actual knowledge of such entity.
9. You acknowledge that disclosure of the Confidential Information in violation of the terms of this Agreement will have serious consequences, and agree that, in the event of any breach of this Agreement, the Company will be entitled to apply for equitable relief (including injunction and specific performance) in addition to all other remedies available to it at law or in equity.
10. You acknowledge that some or all of the Confidential Information is or may be price-sensitive Confidential Information and that the use of such Confidential Information may be regulated or prohibited by applicable legislation relating to insider dealing and you undertake not to use any Confidential Information for any unlawful purpose.
11. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term of this Agreement.
12. Your obligations under this Agreement shall terminate upon the earliest of any of the following:
(a) on the date falling twenty (20) months from the date of this Agreement;
(b) on the date a formal agreement in relation to the Project is entered into; and
(c) on the date the Company notifies you that that your participation in the Purpose is no longer required or the date you notify the Company that you will no longer be participating in the Purpose.
In the event the Company does not engage you for the Purpose, the [AFFILIATES] shall not be precluded from representing third parties or acting as principal or agent in transactions which may involve the Company or its subsidiaries provided that the [AFFILIATES] does not use any Confidential Information in connection therewith.
13. For the purpose of this Agreement, “Affiliates” shall mean any person or entity controlling, controlled by or under common control with the relevant party.
14. This Agreement shall be governed by and construed in accordance with the laws of Singapore and the parties hereto submit to the exclusive jurisdiction of the courts of Singapore.
If you agree to accept the Confidential Information on the foregoing terms, please sign this Agreement in the space provided below and deliver it to us via facsimile (with the executed original to follow by next-day courier).
Yours faithfully,
[COMPANY A]
ACCEPTED AND AGREED
This ____ day of ____________:
_____________________________
Name:
NRIC NO:
Title:
