We understand that you wish to investigate a client company of RMT Accountants & Business Advisors Ltd (“RMT”), or a company owned by clients of RMT (the “Company”), whose name will be disclosed to you on signing this letter, in connection with the potential acquisition of all or part of the business of the Company or the purchase of all or part of the share capital of the Company (the “Permitted Purpose”) and that you, other providers of finance and your financial and professional advisers in relation to the Permitted Purpose, (together referred to as the “Disclosees”), will need access to certain information relating to the Company (the “Confidential Information”).
1 In consideration of our agreeing to supply, and so supplying, the Confidential Information to you (in respect of which we are authorised to disclose to you on behalf of the Company) and agreeing to enter into discussions with you, you hereby undertake to RMT and by way of further obligation to the Company agree as follows:
(a) to hold the Confidential Information in confidence and not to disclose or permit it to be made available to any person, firm or company (except to other Disclosees) without our prior consent;
(b) only to use the Confidential Information for the Permitted Purpose;
(c) to ensure that each person to whom disclosure of Confidential Information is made by you is fully aware in advance of your obligations under this letter;
(d) upon written demand from us either to return the Confidential Information and any copies of it or to confirm to us in writing that, save as required by law or regulation, it has been destroyed. You shall not be required to return reports, notes or other material prepared by you or other Disclosees or on your or their behalf which incorporate Confidential Information (Secondary Information) provided that the Secondary Information is kept confidential;
(e) to keep confidential and not reveal to any person, firm or company (other than Disclosees) the fact of your investigations into the Company or that discussions or negotiations are taking place or have taken place between us in connection with the proposed transaction or that potential investors/acquirers are being sought for the Company;
(f) that no person gives any warranty or makes any representation as to the accuracy or otherwise of the Confidential Information, save as may subsequently be agreed.
This paragraph 1 does not exclude liability for, or any remedy in respect of, fraudulent misrepresentation.
2 Nothing in paragraph 1(a) to (f) of this letter shall apply to any information or Confidential Information:
(a) which at the time of its disclosure is in the public domain;
(b) which after disclosure comes into the public domain for any reason except your failure, or failure on the part of any Disclosee, to comply with the terms of this letter;
(c) which is disclosed by us or the Company, its directors, employees or advisers on a non-confidential basis;
(d) which was lawfully in your possession prior to such disclosure;
(e) which is subsequently received by you from a third party without obligations of confidentiality (and, for the avoidance of doubt, you shall not be required to enquire whether there is a duty of confidentiality); or
(f) which you or a Disclosee are required to disclose, retain or maintain by law or any regulatory or government authority.
3 In consideration of the representation and undertakings given by you in this letter, we undertake and agree:
(a) to disclose Confidential Information to you; and
(b) to keep confidential and not to reveal to any person, firm or company (other than persons within our Company who need to know, our bankers and professional advisers) the fact of your investigation into the Company or that discussions or negotiations are taking place or have taken place between us;
4 We confirm that any personal information contained or referred to in any of the Confidential Information, has been obtained, maintained and handled and all relevant licences, authorities and consents have been obtained in accordance with all applicable data protection laws, rules and regulations.
5 Save in respect of the Company, no term, condition or provision of this letter shall be enforceable under the Contracts (Right of Third Parties) Act 1999 by any person other than the Company who is not a party to it.
6 (a) This letter shall be governed by and construed in accordance with English law.
(b) The obligations in this letter will terminate 12 months from the date of this letter.
7 You acknowledge that the rights and obligations contained in this Agreement are enforceable by:
(b) RMT for and on behalf of the Company;
(c) The Company; or
(d) RMT together with the Company.
8 You further acknowledge that RMT may at any time without consent assign all or any of its rights under this letter to the Company.
Please indicate your acceptance of the above by signing and returning the enclosed copy of this letter as soon as possible.