THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is by and between
New Colony Group, Inc. ("NCG") and the Reviewer indicating his prior
acceptance below..
Reviewer has requested information concerning NCG. The Company is
prepared to make available to Reviewer certain information
concerning NCG. As a condition to such information being furnished
to Reviewer and/or its directors, officers, employees, affiliates,
agents, auditors or advisors, including without limitation,
attorneys, accountants, and/or consultants (such directors,
officers, employees, affiliates, agents, auditors and advisors are
herein collectively referred to as "Representatives") Reviewer
agrees to treat any and all information (whether written or oral)
concerning NCG that is furnished (whether before or after the date
hereof) to Reviewer or its Representatives by or on behalf of NCG
(the "Confidential Information") in accordance with the provisions
of this Agreement.
The term "Confidential Information" also shall be deemed to include
all notes, analyses, compilations, forecasts, studies,
interpretations or other documents prepared by Reviewer that
contain, reflect or are based upon, in whole or in part, the
information furnished to Reviewer or its Representatives pursuant to
the terms of this Agreement. The term Confidential Information does
not include information that (i) is or becomes generally available
to the public other than as a result of a disclosure by Reviewer or
its Representatives, (ii) becomes available to Reviewer on a
non-confidential basis from a source other than NCG or its
Representatives, provided that such source is not known by Reviewer
after a due inquiry from such source to be bound by any legal,
contractual, fiduciary or other obligation of confidentiality to NCG
with respect to such information, or (iii) was known by Reviewer
prior to its disclosure by NCG or its Representatives.
Reviewer hereby agrees that (i) the Confidential Information will he
used for the purpose of evaluating a potential business relationship
with NCG by Reviewer, on Reviewer's own behalf and not as an agent,
representative or broker of any undisclosed party, (ii) Reviewer
will not disclose any of the Confidential Information to any person
or entity in any manner whatsoever, (iii) the Confidential
Information shall not be used by Reviewer or its Representatives,
directly or indirectly, in any way that is detrimental to NCG or to
compete with NCG at this time or at any time in the future, (iv)
Reviewer will not, without the prior written consent of NCG,
disclose to any person or entity the fact that the Confidential
Information has been made available, or that Reviewer is considering
a business relationship with NCG or that discussions or negotiations
are taking or have taken place concerning NCG or any term, condition
or other fact relating to NCG or such discussions or negotiations,
including, without limitation, the status thereof, and (v) Reviewer
will not use any Information other than in connection with a
possible business relationship involving NCG; provided, however,
that any of such information may be disclosed by Reviewer (A) to its
Representatives, so long as written consent is obtained from NCG by
the Reviewer prior to such disclosures and so long as such
Representatives are provided with a copy of this Agreement and agree
to be bound by its terms, (B) in order to comply with any law,
order, regulation or ruling applicable to Reviewer and (C) to
government agencies, regulatory bodies or representatives thereof,
courts or pursuant to legal process. Reviewer will cause its
representatives to observe the terms of this Agreement, will be
responsible for any breach of this Agreement by any of its
Representatives and will take all reasonable measures, including but
not limited to court proceedings, to restrain its Representatives
from unauthorized disclosure of the Confidential Information. The
term "person or entity" as used in this Agreement shall be broadly
interpreted to include, without limitation, any individual,
corporation, company, association, or partnership.
In the event that Reviewer is requested or required (by oral
question, interrogatories, requests for information or documents in
legal proceedings, subpoena, civil investigative demand or other
process) to disclose any of the Confidential Information, Reviewer
shall (i) provide NCG with notice of the existence, terms and
circumstances surrounding any such request or requirement as soon as
practicab1e, and, at NCG's request and expense, to seek or help NCG
seek a protective order or other appropriate assurance that
confidential treatment will be accorded to such portions of the
disclosed Confidential Information which NCG so designates, (ii)
consult with NCG on the advisability of taking legally available
steps to resist or narrow such requirements, (iii) disclose only
that portion of the Confidential Information which Reviewer is
advised by its counsel is legally required, and (iv) prior to
disclosing such material, request that confidential treatment be
accorded such information.
If Reviewer determines not to proceed with a business relationship
with NCG, Reviewer will promptly inform NCG of that decision and, in
that case, and at any other time upon request of NCG, Reviewer will
promptly deliver to NCG at Reviewer's own expense all copies of the
Confidential Information in possession of Reviewer or its
Representatives and any other written material containing or
reflecting any information (whether prepared by NCG, Reviewer or its
Representatives) and will not retain, in whole or in part, any
copies, extracts or other reproductions of such written material.
All documents, memoranda, notes and other writings whatsoever
prepared by Reviewer or its Representatives based on the
Confidential Information shall be destroyed, and Reviewer will
confirm such destruction to NCG in writing. Any oral information
will continue to be subject to the terms of this Agreement.
Reviewer acknowledges and agrees that NCG does not and will not make
any representation or warranty, express or implied, as to the
accuracy or completeness of the Confidential Information. Although
NCG has endeavored to include in the Confidential Information,
information known to NCG which it believes to be relevant for the
purpose of Reviewer's investigation, Reviewer understands that,
except as may otherwise be agreed in writing, NCG does not make any
representation or warranty as to the accuracy or completeness of the
Confidential Information. Reviewer agrees that neither NCG nor any
of its Representatives shall, absent fraud, have any liability under
this Confidentiality Agreement to Reviewer resulting from the use of
the Confidential Information by Reviewer.
Reviewer agrees to be responsible for any breach of this Agreement
and hereby agrees to indemnify and hold NCG harmless from and
against any and all suits, claims, demands, causes of action,
damages, consequential damages, losses, costs and expenses of any
kind (including, without limitation, fines and penalties and
reasonable attorney's fees and disbursements) whether known or
unknown arising out of any breach of this Agreement or any
obligation under this Agreement by Reviewer or its Representatives.
In addition, Reviewer acknowledges that money damages and other
remedies at law may be inadequate to protect against any actual or
threatened breach of this Agreement by Reviewer and/or its
Representatives, and, without prejudice to any other rights and
remedies otherwise available to NCG, Reviewer agrees to the granting
of a specific performance and injunctive or other equitable relief
in NCG's favor without proof of actual damages. Such remedy shall
not be deemed to be the exclusive remedy for Reviewer's or its
Representatives' breach of this Agreement, but shall be in addition
to all other remedies available to NCG at law or equity.
Reviewer agrees that no failure or delay by NCG 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 right,
power or privilege hereunder.
This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by the parties hereto and their respective successors
and assigns, and no modifications of this Agreement or waiver of the
terms and conditions hereof will be binding upon Reviewer or NCG,
unless approved in writing by each of Reviewer and NCG.
This Agreement sets forth the entire agreement and understanding of
the parties hereto, and supersedes all prior agreements and
understandings between the parties hereto with respect to the
relationship contemplated hereby.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any choice of law principles. Each party hereto irrevocably and unconditionally consents to the jurisdiction of the courts of the State of New York l
This Agreement may be signed in counterparts, each of which shall be
an original and both of which taken together shall constitute a
single document.