Dear Sir or Madam,
You, as the “Recipient”, by entering this data room, consents to the terms of this Agreement to receive certain information from Sound Point Capital Management, LP (“Sound Point”) in regard to Sound Point itself, entities managed and/or advised or to be managed and/or advised by Sound Point (the “Funds”), or in regard to any other potential transaction, in order for the Recipient to perform its normal review process in connection with possible transactions with Sound Point and/or the Funds. As a condition to such information, the Recipient agrees to treat any such information as confidential information (“Confidential Information”) in accordance with the provisions of this Agreement.
The term “Confidential Information” shall include all information, including all writings, including, without limitation, risk reports, performance and track records, oral, visual, electronic and any other form of communication, provided to the Recipient, whether or not such information is marked as confidential, other than information which (i) is or becomes generally available to the public other than as a result of a breach of this Agreement by the Recipient, (ii) is or becomes available to the Recipient on a non-confidential basis from a source other than Sound Point, its representatives, consultants or agents, (iii) was known to or possessed by Recipient prior to receipt of the Confidential Information from Sound Point or (iv) is independently developed by the Recipient through without reliance on the Confidential information.
The Recipient hereby agrees that the Confidential Information will be held in strict confidence and will be used solely for the purposes of evaluating and effecting possible investment relationship with Sound Point or effecting investment in the Funds (collectively, the “Transaction”), and that such information will be kept confidential by the Recipient and its representatives and not disclosed to any third parties, provided however, that (i) any of such Confidential Information may be disclosed to the Recipient and its employees, officers, consultants, counselors, agents, or advisors who need to know such information for the purpose of evaluating the Transaction (collectively to the extent each of the foregoing receives the Confidential Information from the Recipient, the “Representatives”) (it being understood that such Representatives will be informed of the confidential nature of such information and will agree to be bound to this Agreement before being provided with the Confidential Information), (ii) any disclosure of such Confidential Information may be made in response to proper legal process or otherwise as required by law and (iii) any disclosure of such Confidential Information may be made to which Sound Point consents in writing, which shall include electronic mail or facsimile. In any event, the Recipient shall be responsible for any breach of this Agreement by its Representatives.
In the event the Recipient is requested by law or by any court or regulatory authority to disclose the Confidential Information, the Recipient will (to the extent legally permissible) notify Sound Point and/or the Funds promptly after receipt thereof, so that Sound Point and/or the Funds may seek an appropriate protective order or waive the Recipient’s compliance hereunder. If in the absence of a protective order or waiver hereunder, the Recipient is compelled to disclose the Confidential Information, the Recipient may disclose that portion of such information that such counsel (which may be internal counsel) advises is legally required, provided that the Recipient (to the extent legally permissible) exercises its reasonable best efforts (having regard, inter alia, to the Recipient’s internal and external costs of such efforts) to preserve the confidentiality of the Confidential Information, including without limitations, by not opposing Sound Point’s and/or the Funds' efforts to obtain the appropriate protective order, furnishing Sound Point with any records related to the Confidential Information necessary to obtain protective relief. Notwithstanding the foregoing, the Recipient will be permitted to disclose the Confidential Information or any portion thereof upon the request of any government or regulatory or self-regulatory body having or claiming authority to regulate or oversee any aspect of the Recipient’s business, but the Recipient agrees to advise them of the confidential nature of such Confidential Information and (to the extent legally permissible) request confidential treatment of such information.
The Recipient agrees that all communication in terms of any Transaction shall be explicitly conducted through Sound Point. The Recipient agrees that is not permitted to contact employees, representatives, shareholders, the supervisory board, the advisory board, clients, suppliers, other advisors of a potential portfolio company and/or a Transaction nor the subsidiaries or affiliates of a potential portfolio company in connection with any Transaction. Further, the Recipient agrees that without the written consent of Sound Point for a period of 24 months from the date hereof it will not (i) undertake, acquire or agree to acquire by means of purchase, merger, amalgamation, arrangement, consolidation, take-over bid, business combination or in any other manner, any securities or assets of a potential portfolio company or its affiliates, (ii) have any discussions or enter into any arrangements, understandings or agreements, whether written or oral, with, advise, finance, aid, assist, encourage or act in concert with, any other persons in connection with any of a potential portfolio company or a Transaction other than as contemplated with Sound Point. Notwithstanding the above, secondary market transactions executed in the regular course of business shall not be within the scope of this paragraph, and further, nothing in this paragraph is intended to restrict or limit the Recipient’s investment in a third-party fund or other investment vehicle over which the Recipient has no investment discretion, provided that the Recipient at all times complied with the terms of this Agreement.
The Recipient agrees that upon the written request of Sound Point it will promptly return to Sound Point or destroy the Confidential Information including all copies, extracts or other reproductions in whole or in part. Notwithstanding the foregoing, the Recipient may, subject to the confidentiality obligations set forth in this Agreement, retain copies of Confidential Information and all materials produced by it or its Representatives in connection with the matters contemplated hereby and, as may be necessary to comply with record keeping requirements (whether by applicable law or regulation or in accordance with the Recipient’s bona fide and reasonable document retention policies) applicable to the Recipient and its Representatives.
The disclosure of the Confidential Information pursuant to this Agreement shall not be construed as granting the Recipient a license under any patent, patent application or copyright, or any right of ownership in said Confidential Information, nor shall such disclosure constitute any representation, warranty, assurance, guarantee or inducement by Sound Point with respect to the infringement of patents or other rights of others; nor shall this Agreement be construed to (i) create any exclusive relationship between the Recipient and Sound Point and/or the Funds, or (ii) constitute a commitment by Sound Point and/or the Funds to enter into a transaction with the Recipient, nor a commitment by Recipient to proceed with a possible investment with Sound Point and/or the Funds.
The Recipient acknowledges and agrees that, in the event of a material unauthorized use or disclosure of, or the failure to return upon request, Confidential Information in breach of the provision of this Agreement, Sound Point and/or the Funds will suffer irreparable injury that may not be compensable by money damages and for which such party may not have an adequate remedy available at law. Accordingly, if Sound Point and/or the Funds institute an action or proceeding to enforce the provisions of this Agreement, such parties shall be entitled to seek such injunctive or other equitable relief, without the posting of a bond or security, from a court of competent jurisdiction as may be necessary or appropriate to prevent or curtail any such breach, threatened or actual. The foregoing shall be in addition to and without prejudice to such other rights as such party may have, subject to the express provisions of this Agreement (or any other applicable agreement), at law or in equity. If any provision of this Agreement is declared void or otherwise unenforceable, such provision shall be deemed to have been severed from this Agreement, which shall otherwise remain in full force and effect.
No failure or delay by Sound Point and/or the Funds in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall 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 shall not be construed to constitute or to create a partnership or a joint venture or any other form of legal association that would impose liability upon either party for the act or failure to act of the other party or as providing either party with the right, power or authority (expressed or implied) to create any duty or obligation on behalf of the other party. Except as expressly provided to the contrary in this Agreement, no third party is intended to be, and no third party shall be deemed to be, a beneficiary of any provision of this Agreement.
The obligations of the parties set forth in this Agreement shall terminate upon the earlier of (i) such time as all Confidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Recipient or (ii) two (2) years from the date on which said Confidential Information is provided to the Recipient; provided, however, the obligations of the Recipient to destroy or return the Confidential Information as set forth above shall survive any such termination.
This Agreement constitutes the entire agreement between the parties and supersedes and cancels any and all prior agreements between them, concerning the subject matter hereof.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute the same agreement.
Any notice or other communication required to be given hereunder shall be effective only if in writing and shall be deemed sufficiently given only if sent to the respective address shown below unless a change in address is received by the notifying party.
If to Sound Point:
If to Recipient:
Recipient’s Name, Address or Email Address as previously provided to Sound Point
The undersigned acknowledge that the obligations and rights hereunder are binding to all successors, assigns, heirs, subsidiaries, affiliates, parents and/or any other entity which may succeed to the rights of the Recipient.
Any disputes arising directly or indirectly under this agreement may be resolved before state or federal courts located in New York, New York and New York procedural and substantive law shall exclusively apply.
Sound Point Capital Management, LP