CONFIDENTIALITY AGREEMENT
CONFIDENTIAL INFORMATION
In order to gain access to the confidential information, interested parties are required to deliver two
executed copies of the Confidentiality Agreement to Scotia Waterous at the address listed below.
CONFIDENTIALITY AGREEMENT
The Confidentiality Agreement (included on the following pages) should be completed in full. Please
deliver two executed original copies to:
Zodiac Exploration Inc.
Bayswater Exploration & Production, LLC
c/o
Scotia Waterous Inc.
Attention: Hasan Haq
Tel: (713) 437-5047
Fax: (713) 224-1464
Email: hasan_haq@scotiawaterous.com
Confidentiality Agreements may be faxed to Scotia Waterous at (713) 224-1464 or emailed to
hasan_haq@scotiawaterous.com, but must be followed by two executed original copies to 711 Louisiana
St, Suite 1400, Houston TX 77002.
www.scotiawaterous.com
PRIVATE & CONFIDENTIAL
Month Day, 2011
Name, Title
Company Name
Address1
Address2
Address3
Dear Sir/Madam
Re: Confidentiality Agreement
1. Definitions. Wheresoever used in this Agreement, the following terms shall bear the respective
definitions hereinafter given, namely:
"Affiliate" and "Subsidiary" have the meanings ascribed thereto in the ASA;
"ASA" means the Securities Act (Alberta);
"Bayswater" means Bayswater Exploration and Production, LLC;
"California Assets" means the lands currently held by the Selling Partners in Kings, Kern and
Fresno Counties, California as contained within the Exclusion Area outlined on the map in
Appendix B;
"Data Room" means the room or rooms, whether physical or virtual, containing Evaluation
Material;
"Effective Date" means the [day, month and year];
"Evaluation" means an evaluation of the properties, assets and operations of the Selling Partners
made or to be made in contemplation of a Transaction;
"Evaluation Material" means all information (including information in the form not only of
written information but also information which may be transmitted physically, orally,
electronically, visually or by any other means and whether or not it is identified as "confidential")
relating to the Selling Partners, or their business, affairs, financial position, assets, operations,
prospects, activities or affairs including, without limitation, information provided for inspection
in any data room (real or virtual) and all reports, evaluations, notes, analysis, documents,
geological, engineering, seismic (either trade or proprietary) geophysical and/or land maps or
data, trade secrets or any other documents or information pertaining in any way whatsoever to the
Selling Partners, including, but not limited to, any Selling Partners’ Core, together with all
analysis, evaluations, compilations, notes, studies or other documents prepared by [Company] or
any of its Representatives containing or based upon, in whole or in part, such information or
reflecting the review of the Selling Partners and includes all information, if any, previously made
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available to [Company] or any of its Representatives; provided that Evaluation Material will not
include any information which: (i) at the time of its disclosure to [Company] is, or thereafter
becomes, generally available to, and known by the public (other than as a result of a disclosure
directly or indirectly by [Company] or any of its Representatives); (ii) was available to
[Company] on a non-confidential basis from a source other than the Selling Partners, provided
that such source is not and was not, to the knowledge of [Company] after due inquiry, prohibited
or restricted from transmitting or communicating the information to [Company] by confidentiality
agreement with or other contractual, legal or fiduciary obligation to, the Selling Partners; or (iii)
has been independently acquired or developed by [Company] without violating any of the
obligations of [Company] under this Agreement or any other agreement [Company] has with any
Person;
"Exclusion Area" means the area containing the California Assets outlined on the map in
Appendix B;
"Joint Development Agreement" means the Joint Development Agreement effective January 1,
2010 between Zodiac Energy, LLC, Bayswater and Vintage which applies to the lands depicted in
Exhibit A to Appendix A to this Agreement;
"Person" means any natural or legal person, including a corporation, trust or partnership;
"Representative" means, in the case of the Representatives of [Company], any of [Company]'s
employees, officers, directors or any advisors, counsel or consultants who are involved in the
preparation of an Evaluation for [Company] and, in the case of the representatives of the Selling
Partners, any of the Selling Partners' Subsidiaries and any of their respective employees, officers,
directors or any advisors, counsel or consultants;
"Term" means a period of 12 months commencing on the Effective Date;
"Transaction" means a transaction or series of transactions approved by the respective board of
directors of the Selling Partners and whether by way of any merger, consolidation, business
combination, recapitalization, reorganization, restructuring, investment, joint venture, strategic
alliance, partnership, farmin or farmout arrangement or any similar transaction involving the
Selling Partners and [Company] or any of [Company]'s Subsidiaries or Affiliates;
"Vintage" means Vintage Production California LLC;
"Selling Partners" means Zodiac Exploration Inc. and Bayswater Exploration & Production
LLC; and
"Selling Partners’ Core" means any and all core samplings of the Selling Partners recovered in
respect of the drilling of the well located at 4-9-22S-19E MD and 1-10-22S-19E MD, Kings
County, California.
Where any word or term is used herein in the singular or neuter, the same shall include the plural or
masculine or feminine as the context may require.
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2. JDA Confidentiality Agreement. In order to gain access to certain Evaluation Materials which
is further subject to the confidentiality provisions of the Joint Development Agreement,
[Company] shall enter into a confidentiality agreement among Zodiac Energy, LLC, Bayswater
and Vintage in the form attached as Appendix A to this Agreement.
3. Non-Disclosure of Possible Transaction. Without the prior written consent of the Selling
Partners, [Company] will not, and will direct its Representatives not to, disclose to any Person
other than [Company]'s Representatives: (i) the fact that any investigations, discussions or
negotiations are taking place concerning a possible Transaction; (ii) that [Company] has
requested or received Evaluation Material; (iii) any opinion or comment in respect of the
Evaluation Material; or (iv) any of the terms, conditions or any facts with respect to such possible
Transaction, including the status thereof.
4. Use of Evaluation Material. [Company] agrees and shall cause its Representatives to agree: (i)
to use the Evaluation Material only for the purposes of conducting an Evaluation in furtherance of
implementing a Transaction between the Selling Partners and [Company]; (ii) not to use, exploit
or employ the Evaluation Material for any other purpose or in any other manner; (iii) to keep the
Evaluation Material fully secret and confidential for the Term; and (iv) not copy or reproduce any
written materials comprising a part of the Evaluation Material, without the prior written consent
of the Selling Partners except as necessary for purposes of conducting an evaluation of the
Evaluation Material and a possible Transaction. It is understood that neither this Agreement nor
the disclosure of any Evaluation Material to [Company] should be construed as granting to
[Company] or any of its Representatives any licence or rights in respect of any part of the
Evaluation Material.
5. Safeguard and Non-Disclosure of Evaluation Material. [Company]will safeguard and strictly
control the dissemination of the Evaluation Material and not release or disclose any Evaluation
Material to any Person, other than its Representatives and in each case only those Representatives
who need to receive such information in connection with [Company]'s Evaluation and who have
first been informed of and agreed to be bound by the terms of this Agreement. [Company] agrees
to be responsible for any breach of this Agreement by any of its Representatives or by any other
person to whom it has provided Evaluation Material and shall, upon request, forthwith provide to
the Selling Partners a list of all parties to whom Evaluation Material has been provided.
6. Return of Materials. [Company] will keep a record of the location of any Evaluation Material
provided to it. Promptly upon the Selling Partners request therefor [Company] will and will
cause its Representatives to (i) return to the Selling Partners all Evaluation Material furnished to
[Company] or its Representatives, without retaining copies or other reproductions, reports,
extracts, notes or other memoranda thereof (whether electronic, magnetic or otherwise); (ii)
destroy or have destroyed all notes and all documents prepared by or in the possession of
[Company] or its Representatives related to the information contained in the Evaluation Material
but which does not itself constitute Evaluation Material; and (iii) provide to the Selling Partners a
certificate that the terms and conditions of this paragraph have been complied with;
notwithstanding the foregoing, [Company] may retain one copy of the Evaluation Material if
required by law, regulation or internal document retention policies, provided such retained
Evaluation Material shall remain confidential in accordance with the provisions of this
Agreement. Notwithstanding anything to the contrary herein, it is understood and agreed that the
[Company]'s computer systems may automatically back-up Evaluation Material disclosed to it
under this Confidentiality Agreement. To the extent such computer back-up procedures create
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copies of the Evaluation Material, [Company] may retain such copies in its archival or back-up
computer storage for the period they normally archive back-up computer records, which copies
shall be subject to the provisions of this Confidentiality Agreement until the same are destroyed,
and shall not be accessed by [Company] during such period of archival and back-up storage.
7. Liability. Without limitation and in addition to any other rights the Selling Partners and its
Representatives may have against [Company] or arising by reason of any breach hereof,
[Company] shall:
(a) be liable to the Selling Partners and its Representatives, for any and all losses, costs,
damages and expenses whatsoever (including legal, accounting and other professional
costs, expenses, fees and disbursements, with legal fees on a solicitor-client basis) which
any of them may suffer, sustain, pay or incur; and
(b) indemnify and hold harmless the Selling Partners and its Representatives against all
actions, proceedings, claims, demands, losses, costs, damages and expenses whatsoever
which may be brought against or suffered by the Selling Partners or its Representatives or
which any of them may sustain, pay or incur,
resulting or arising, directly or indirectly, from disclosure of any part of the Evaluation Material
contrary to the provisions hereof or any other breach of this Agreement by [Company] or its
Representatives. [Company] acknowledges and agrees that the Selling Partners are constituted as
trustee of [Company]'s covenants under this paragraph 8 for the benefit of the Selling Partners’
Representatives and that the Selling Partners or its Representatives shall be entitled to enforce
such covenants on behalf of such persons.
8. Legally Required Disclosures. Should [Company] or its Representatives be required (by
deposition, interrogatory, request for information or documents in legal proceedings, subpoena,
civil investigative demand or similar process in connection with any proceeding), applicable laws
or stock exchanges rules or regulations to disclose any Evaluation Material or any matter referred
to in paragraph 4 hereof, [Company] will provide the Selling Partners with prompt notice of such
requirement or request so that the Selling Partners may seek an appropriate protection order, or
waive compliance with any of the provisions of this Agreement, or both. If, in the absence of
either a protective order or a waiver by the Selling Partners, [Company] or its Representatives, in
the reasonable written opinion of its legal counsel, are required by law, securities regulation or
policy to disclose any Evaluation Material or such other matter, [Company] or its Representatives
may, without liability hereunder, disclose that portion, and only that portion, of the Evaluation
Material or such other matter that [Company] or its Representatives are required so to disclose
and [Company]will exercise its reasonable efforts in such event to obtain reliable assurance that
the Evaluation Material or such other matter will be accorded confidential treatment.
9. Company Personnel. [Company] will not, and will cause its Representatives not to, solicit for
hire or employment, directly or indirectly, any officer or employee of the Selling Partners for a
period of two (2) years from the Effective Date. For the purposes of this clause, "solicitation"
shall not include solicitation of any officer or employee of the Selling Partners who is solicited:
(i) by advertising in a newspaper or periodical of general circulation; or (ii) indirectly through a
personnel search agency engaged by [Company] generally (not specifically in respect of the
Selling Partners).
10. No Representation or Warranty. [Company] understands and acknowledges that neither the
Selling Partners nor its Representatives are making any representation or warranty, expressed or
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implied, as to the accuracy or completeness of the Evaluation Material and neither the Selling
Partners nor its Representatives or any of their respective officers, directors, employees or agents
will have any liability whatsoever to [Company] or to any other Person resulting from
[Company]'s use of the Evaluation Material and that [Company] is and will be relying upon its
own investigations, due diligence and analysis in evaluating and satisfying itself as to all matters
relating to the Selling Partners and their business, affairs and assets. Only such representations or
warranties that are contained in a definitive agreement with respect to a Transaction, when as and
if executed and subject to such conditions or limitations or restrictions as may therein be
specified, shall have any legal effect.
11. Other Restrictions. During the period commencing on the date of this Agreement and ending on
the date that is 12 months from the date of this Agreement neither [Company] nor its
Representatives, Subsidiaries of Affiliates shall:
(a) without the specific prior written approval of the respective board of directors of the
Selling Partners, which approval may be given on such terms as the board of directors of
the Selling Partners may determine: (i) in any manner acquire, agree to acquire or make
any proposal or offer to acquire, directly or indirectly, in any manner any securities of the
Selling Partners or any assets of the Selling Partners; (ii) propose or offer to enter into,
directly or indirectly, any merger or business combination involving the Selling Partners;
(iii) directly or indirectly, "solicit", or participate or join with any Person in the
"solicitation" of, any "proxies" (as such terms are defined in the Securities Act (Alberta))
to vote, to seek to advise or to influence any Person with respect to the voting of any
voting securities of the Selling Partners; (iv) otherwise act alone or in concert with others
to seek to control or to influence the management, board of directors or policies of the
Selling Partners; (v) make any public or private disclosure of any consideration,
intention, plan or arrangement inconsistent with any of the foregoing; or (vi) advise,
assist or encourage any other Person in connection with any of the foregoing; and
(b) either individually or in partnership or jointly or in conjunction with any Person or
Persons, firm, association, syndicate, company or corporations, as principal, agent,
shareholder or in any manner whatsoever, either directly or indirectly, carry on or be
engaged in or concerned with or interested in business activities or other operations
relating to the Exclusion Area except as otherwise contemplated by this Agreement.
12. Securities Laws. [Company] acknowledges that it is aware of the general nature of applicable
securities laws, including, without limitation, all applicable securities laws that may prohibit any
Person who has material, non-public information concerning the matters which are the subject of
this Agreement, from trading in securities of a company which may be a party to a transaction of,
or may propose to become a party to, the type contemplated herein or from communicating such
information to other Persons and [Company] covenants and agrees to comply with all such
applicable securities laws.
13. Contact with Company Personnel, Customers, Suppliers. During the Term, [Company] will
not and will cause its Representatives not to, directly or indirectly, initiate or maintain contact
(except for those contacts made in the ordinary course of business) with any officer, director or
employee or agent of the Selling Partners, including any customers or suppliers of the Selling
Partners, regarding its business, operations, prospects or finances except with the express
permission of the Selling Partners. It is understood that senior officers of Zodiac and/or senior
officers of Bayswater will arrange for any appropriate contacts for due diligence purposes with
respect to [Company]'s Evaluation and that all: (i) communications regarding a Transaction; (ii)
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requests for additional Evaluation Material; (iii) requests for facility tours or meetings with
management; and (iv) discussions or questions regarding the Evaluation Material will be
submitted or directed by [Company] to senior officers of Zodiac and/or senior officers of
Bayswater.
14. Process. No contract or agreement between [Company] and the Selling Partners providing for a
Transaction shall be deemed to exist unless and until a definitive agreement with respect thereto
has been executed and delivered. Unless and until such an agreement has been executed and
delivered, neither [Company] nor the Selling Partners shall have any legal obligation of any kind
whatsoever with respect to any such Transaction by virtue of this Agreement or any other written
or oral expression with respect to such a Transaction except, in the case of this Agreement, for the
matters specifically agreed to herein. The Selling Partners are free to conduct any process with
respect to any Transaction as it, in itheir sole discretion, shall determine (including, without
limitation, negotiating with any Person and entering into any agreement without prior notice to
[Company] or any other Person), and [Company] acknowledges and agrees that: (i) any
procedures relating to any Transaction may be changed at any time and without notice to
[Company] or any other Person; and (ii) [Company] shall not have any claim whatsoever against
the Selling Partners or any of its Representatives arising out of or relating to a Transaction (other
than those as against the parties to a definitive agreement with [Company] in accordance with the
terms hereof). [Company] agrees that the Selling Partners reserves the right, in its sole discretion,
to reject any and all proposals made by [Company] with respect to a Transaction and to terminate
discussions and negotiations, with [Company] at any time. For the purposes of this paragraph 15,
the term "definitive agreement" does not include an executed letter of intent or any other
preliminary written agreement, nor does it include any written or oral offer bid or any written or
oral acceptance thereof. [Company] acknowledges and agrees that the entering into of this
Agreement by the Selling Partners or any approval granted pursuant to paragraph 12 hereof does
not constitute the agreement of the Selling Partners to agree to or recommend to their respective
shareholders any Transaction, nor does it restrict the rights of the Selling Partners to solicit or
provide information to any other parties in respect of a Transaction.
15. Access to Properties. If [Company] or any of its Representatives are provided with physical
access to any properties or facilities with respect to which the Selling Partners or any of their
Subsidiaries has an ownership interest or operates (other than access in the normal course in
respect of properties or facilities in which [Company] has an existing interest), [Company] agrees
that neither [Company] nor its Representatives shall have, and shall not make, any claims
whatsoever against the Selling Partners, their Representatives or any of their respective directors,
officers, employees, agents, consultants, representatives or advisors as a result of such access
including, without limitation, any and all claims and causes of action for personal injury, death or
property damage occurring as a result of [Company] or its Representatives' access to such
properties or facilities and [Company] agrees to indemnify, defend and hold harmless the Selling
Partners, their Representatives and any of their respective directors, officers, employees, agents,
consultants, representatives or advisors 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 or
facility as a result of [Company]'s entry onto the premises. [Company] shall, and shall cause Its
Representatives to, comply fully with all rules, regulations and instructions issued by the Selling
Partners or any of their Subsidiaries regarding [Company] or its Representatives' access to such
properties or facilities.
16. No Third Parties. In accepting and reviewing the Evaluation Material, [Company] represents
and warrants that it is acting solely for itself. Further, [Company] represents and warrants that
neither [Company] nor any of its Representatives have discussed or shared, and [Company]
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hereby covenants that unless it has first received the written consent of the Selling Partners
neither [Company] nor any of its Representatives will discuss or share, with any third party any
aspect of the Evaluation Material or the fact that the Selling Partners are interested in a proposed
Transaction. [Company] acknowledges that the effect of this covenant is that without the full
disclosure to and the written consent of the Selling Partners, neither [Company] nor any of their
Representatives can act as agent, partner, co-participant or co-venturer for any third party or third
parties with respect to a proposed Transaction. In order to obtain the consent of the Selling
Partners, which the Selling Partners are entitled to withhold in their sole discretion, [Company]
shall notify the Selling Partners of the identity of each person for whom or with whom
[Company] or any of Its Representatives had considered pursuing a possible Transaction and the
nature and interest [Company] or any of its Representatives and each such Person would have in
respect of such possible Transaction.
17. Remedies. [Company] acknowledges and agrees that the Selling Partners will be irreparably
damaged if any provision of this Agreement is not performed by [Company] or its
Representatives in accordance with its terms and that monetary damages would not be sufficient
to remedy any breach by [Company] or its Representatives of any term or provision of this
Agreement and [Company] further agrees that the Selling Partners shall be entitled to equitable
relief, including injunction and specific performance, in the event of any breach hereof and in
addition to any other remedy available at law or in equity. [Company] further agrees to waive
any requirement for the deposit of security or posting of any bond in connection with any
equitable remedy.
18. Governing Law and Attornment. [Company] hereby irrevocably and unconditionally consents
to and submits to the exclusive jurisdiction of the courts of the Province of Alberta, Canada for
any actions, suits or proceedings arising out of the interpretation or enforcement of this
Agreement (and [Company] agrees not to commence any action, suit or proceeding relating
thereto except in such courts) and further agree that service of any process, summons, notice or
document by personal delivery to [Company]'s address set forth above shall be effective service
of process for any action, suit or proceeding brought against [Company] in any such court.
[Company] hereby irrevocably and unconditionally waives any objection to the laying of venue
of any action, suit or proceeding arising out of this Agreement or the matters contemplated hereby
in the courts of the Province of Alberta and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action, suit or proceeding
so brought has been brought in an inconvenient forum.
19. Notice. All notices to be given to a party hereunder shall be in writing and delivered personally,
by overnight courier or by facsimile, addressed, in the case of the Selling Partners, c/o Randy
Neely of Zodiac Exploration Inc., Suite 400, 1324 – 17th Avenue S.W., Calgary, Alberta,
T2T 5S8 with a copy to Lynn Belcher of Bayswater Exploration & Production, LLC, Suite 610,
730 – 17th Street, Denver, Colorado 80202 and, in the case of [Company], to the addressee at the
address set forth on the execution page hereof.
20. Waiver and Amendment. No provision of this Agreement may be waived or amended except
by written consent of the party so waiving, which consent shall specifically refer to the provision
being so amended or waived. No failure or delay by the Selling Partners 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.
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21. Severance. If any provision of this Agreement is determined to be illegal, invalid or
unenforceable by an arbitrator or any court of competent jurisdiction from which no appeal exists
or is taken, that provision will be severed from this Agreement and the remaining provisions will
remain in full force and effect.
22. Headings. The division of this Agreement into sections and the insertion of headings are for
convenience of reference only and shall not affect the construction or interpretation of this
Agreement.
23. Benefit and Assignment. This Agreement is for the benefit of the Selling Partners and their
respective successors and assigns and may be enforced by the Selling Partners and their
successors and assigns. This Agreement shall not be assignable by [Company] without the prior
written consent of the Selling Partners. Any consent or approval that may be provided by the
Selling Partners hereunder may be provided by the Selling Partners or their successors. The
Selling Partners reserve the right to assign all or any of the benefits under this Agreement
including, without limitation, the right to enforce any or all of the terms of this Agreement with
respect to the unauthorized use or disclosure by [Company] or its Representatives of the
Evaluation Material to such parties as it deems appropriate including joint venture partners.
24. Counterparts and Execution. This Agreement may be executed in any number of counterparts
and all counterparts taken together constitute one and the same instrument. Receipt of an
originally executed counterpart signature page by facsimile or an electronic reproduction of an
originally executed counterpart signature page by electronic mail is effective execution and
delivery of this Agreement. Any party sending a counterpart by facsimile or electronic mail will
also deliver the original signed counterpart to the other party; however, failure to do so will not
invalidate this Agreement.
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Please confirm that the foregoing correctly sets forth our agreement by signing this agreement in the
space provided and returning the executed agreement to us.
Yours truly,
ZODIAC EXPLORATION INC.
Per:
Murray Rodgers
President and Chief Executive Officer
BAYSWATER EXPLORATION & PRODUCTION LLC
Per:
Lynn S. Belcher
ACCEPTED AND AGREED TO this _____ day of _____________, 2011.
[Company Name]
Per:
Name:
Title:
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VINTAGE/BAYSWATER/ZODIAC
Appendix A
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is entered into this [__] day of [_____]
2011, by and between Vintage Production California LLC (hereinafter referred to as "Vintage"), with its
offices at 9600 Ming Ave., Bakersfield, California 93311, Bayswater Exploration & Production, LLC
(hereinafter referred to as "Bayswater"), with its offices at 730 17th Street, Suite 610, Denver, CO 80202,
Zodiac Energy, LLC (hereinafter referred to as "Zodiac", and together with Bayswater, the "Company",
and together with Vintage, each a "Disclosing Party" or collectively the "Disclosing Parties"), with its
offices at Suite 400, 1324 – 17th Avenue S.W., Calgary, Alberta T2T 5S8, and [insert new party]
(hereinafter referred to as the "Receiving Party"), with its offices at [insert address], all of which may
hereinafter be referred to individually as a "Party" or collectively as the "Parties".
1. (a) In connection with the Joint Development Agreement effective as of January 1, 2010 (the
"JDA"), by and between Vintage, Bayswater and Zodiac, the Company may wish to
disclose to the Receiving Party certain proprietary confidential information relating to the
JDA. All such information actually disclosed by or on behalf of the Disclosing Parties
pursuant hereto is collectively hereinafter referred to as the "Confidential Information".
(b) Confidential Information includes, but is not necessarily limited to, geological,
geophysical and engineering data, maps, models and interpretations of the area covered
by the JDA as set forth in Exhibit "A" attached to this Agreement. The term
"Confidential Information" also shall include all notes, analyses, documents,
compilations, studies, interpretations or other materials, regardless of form or medium,
prepared by any Disclosing Party or any person to whom any Disclosing Party's
Confidential Information is disclosed pursuant to Paragraph 5 (collectively, the
"Receiving Party Representatives") which contain, reflect, or are based upon, in whole or
in part, any of the Confidential Information.
(c) In this Confidentiality Agreement, "Affiliated Company" shall mean any person which (i)
controls either directly or indirectly a Party, or (ii) is controlled directly or indirectly by
such Party, or (iii) is directly or indirectly controlled by a person which directly or
indirectly controls such Party, for which purpose "control" shall mean the right to
exercise 50% or more of the voting rights in the appointment of the directors or similar
representation of a person, and for which purpose and for the purpose of other provisions
of this Agreement "person" shall mean any individual, corporation, government,
partnership, company, group, authority, association or other entity.
2. In consideration of the disclosure referred to in Paragraph 1, the Receiving Party agrees, and shall
cause the Receiving Party Representatives, to keep the Confidential Information strictly
confidential and not to sell, trade, publish or otherwise disclose all or part of the same to any
person in any manner whatsoever, including, without limitation, by means of photocopy,
reproduction or electronic media, without the Disclosing Parties' prior written consent, except as
provided in this Agreement.
3. The term Confidential Information shall be deemed not to include information that, as shown by
competent documentary evidence of the Receiving Party:
(a) is already known to the Receiving Party or its Affiliated Companies as of the date of
disclosure hereunder without violation of any other confidentiality obligation;
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(b) is already in possession of the public or becomes available to the public other than
through the act or omission of the Receiving Party or the Receiving Party
Representatives;
(c) is acquired independently and without a confidentiality restriction by the Receiving Party
or its Affiliated Companies from a third party that represents that it has the right to
disseminate such information at the time it is acquired by the Receiving Party or such
Affiliated Company; or
(d) is developed by the Receiving Party or the Receiving Party Representatives
independently of the Confidential Information received from or on behalf of the
Disclosing Parties.
4. The Receiving Party may disclose the Confidential Information without the Disclosing Parties'
prior written consent to the extent such information is required to be disclosed under applicable
law, stock exchange regulations or by a governmental order, decree, regulation or rule; provided
that the Receiving Party makes commercially reasonable efforts to give prompt written notice to
the Disclosing Parties prior to such disclosure; and provided, further, that, in any case, the
Receiving Party shall only disclose that portion of the Confidential Information that, in the
opinion of the Receiving Party's legal counsel, is required to be disclosed and shall use its
commercially reasonable efforts to ensure further confidential treatment of the information so
disclosed.
5. The Receiving Party may disclose the Confidential Information without the Disclosing Parties'
prior written consent to the following persons:
(a) employees, officers and directors of the Receiving Party and its Affiliated Companies,
provided that the Receiving Party guarantees the adherence of such Affiliated Companies
to the terms of this Agreement; or
(b) any consultant, counsel or agent retained by the Receiving Party or any of its Affiliated
Companies for the purpose of evaluating the Confidential Information, and any existing
or prospective lender or investor of debt or equity funds to the Receiving Party; provided,
however, that, prior to making any such disclosures, the Receiving Party shall obtain an
undertaking of confidentiality, substantially in the same effect as this Agreement, from
each such person.
6. The Receiving Party and its Affiliated Companies, if any, shall only use or permit the use of the
Confidential Information in connection with conducting an evaluation of the area covered by or
the properties subject to the JDA and / or in furtherance of implementing a transaction between
the Recipient and any Disclosing Party. The Parties acknowledge that the Receiving Party and
other persons to whom the Confidential Information is disclosed under this Agreement may retain
mental impressions thereof and that such persons may, now or in the future, be working on other
similar projects, whether or not related to the JDA. Consequently, notwithstanding anything in
this Agreement, the Parties agree that such persons and entities shall not be precluded from
working on such other projects because of the retained mental impressions of the Confidential
Information. For purposes of clarity, no Party shall issue a press release that names or identifies
any Party without the express written consent of the Party to be named in such press release,
unless such disclosure is required under applicable law, stock exchange regulations or by a
governmental order, decree, regulation or rule.
7. The Receiving Party shall be responsible for ensuring that the Receiving Party Representatives
keep the Confidential Information strictly confidential in accordance herewith, shall not disclose
or divulge the same to any unauthorized person and shall abide by the restrictions contained in
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Paragraph 6 above, and shall be responsible for the Receiving Party Representatives' failure to
comply with the same as though such failure were a failure to comply with this Agreement by the
Receiving Party. NO PARTY SHALL BE LIABLE IN AN ACTION INITIATED BY ONE
AGAINST THE OTHER FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES
RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, LOSS OF VALUE, LOSS OF PRODUCTION, LOSS OF FINANCIAL
ADVANTAGE, LOSS OF PROFIT OR BUSINESS INTERRUPTIONS, HOWEVER SAME
MAY BE CAUSED.
8. Nothing in this Agreement shall confer on the Receiving Party or the Receiving Party
Representatives any property rights in the Confidential Information of the Disclosing Parties, and
the Disclosing Parties may demand the return thereof at any time upon giving written notice to
the Receiving Party. Within 30 days of receipt of such notice, the Receiving Party shall return all
of the original Confidential Information furnished by or on behalf of the Disclosing Parties and
shall destroy all copies and reproductions thereof, regardless of form or medium, including, but
not limited to, electronic data, and all other Confidential Information, regardless of form or
medium, prepared by the Receiving Party or the Receiving Party Representatives in its possession
or in the possession of such representatives.
9. This Agreement and all of the rights and obligations of each of the Parties hereunder, other than
(i) indemnity obligations with respect to actions previously taken or events which shall have
previously occurred and (ii) monetary obligations which shall have previously accrued, shall
terminate three (3) years after termination of the JDA.
10. THE DISCLOSING PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, AS TO THE QUALITY, ACCURACY AND COMPLETENESS OF
THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER, AND THE
RECEIVING PARTY EXPRESSLY ACKNOWLEDGES THE INHERENT RISK OF ERROR
IN THE ACQUISITION, PROCESSING AND INTERPRETATION OF GEOLOGICAL AND
GEOPHYSICAL DATA. THE DISCLOSING PARTIES, THEIR AFFILIATED COMPANIES,
AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
REPRESENTATIVES (COLLECTIVELY, THE "DISCLOSING PARTY GROUP"), SHALL
HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO THE USE OF OR RELIANCE
UPON THE CONFIDENTIAL INFORMATION BY THE RECEIVING PARTY, ITS
AFFILIATED COMPANIES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE "RECEIVING
PARTY GROUP").
IF THE RECEIVING PARTY OR ANY OF THE RECEIVING PARTY REPRESENTATIVES
DESIRES AND IS GIVEN PHYSICAL ACCESS TO THE PROPERTIES OF ANY MEMBER
OF THE DISCLOSING PARTY GROUP IN CONNECTION WITH THIS AGREEMENT, THE
RECEIVING PARTY SHALL FULLY RELEASE, INDEMNIFY AND DEFEND THE
DISCLOSING PARTY GROUP FROM AND AGAINST, AND HOLD EACH OF THEM
HARMLESS FROM, ALL LIABILITIES, CLAIMS, DEMANDS, COSTS, LOSSES,
DAMAGES AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER
(INCLUDING, WITHOUT LIMITATION, CLAIMS FOR INDEMNIFICATION UNDER
OTHER CONTRACTS, REASONABLE ATTORNEY'S FEES AND LEGAL COSTS)
RESULTING FROM, RELATING TO OR ARISING IN CONNECTION WITH BODILY
INJURY, DISEASE, OR DEATH OF, OR DAMAGE TO, DESTRUCTION OF OR LOSS OF
ANY PROPERTY OF, (A) ANY MEMBER OF THE RECEIVING PARTY GROUP WHILE
ENTERING, BEING PRESENT ON OR LEAVING SUCH PROPERTIES, REGARDLESS OF
WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT OR CONCURRENT
NEGLIGENCE, STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR
OTHER FAULT OF ANY MEMBER OF THE DISCLOSING PARTY GROUP, THE
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UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, A
PREEXISTING CONDITION, A BLOWOUT OR A FIRE, AND (B) ANY MEMBER OF THE
DISCLOSING PARTY GROUP TO THE EXTENT CAUSED BY, ATTRIBUTABLE TO OR
CONTRIBUTED TO BY ANY ACT OR OMISSION OF ANY MEMBER OF THE
RECEIVING PARTY GROUP WHILE ENTERING, BEING PRESENT ON OR LEAVING
SUCH PROPERTIES. THE RECEIVING PARTY SHALL, AND SHALL CAUSE THE
RECEIVING PARTY REPRESENTATIVES TO, COMPLY FULLY WITH ALL RULES,
REGULATIONS AND INSTRUCTIONS ISSUED BY ANY MEMBER OF THE DISCLOSING
PARTY GROUP TO THE RECEIVING PARTY OR THE RECEIVING PARTY
REPRESENTATIVES REGARDING ITS AND THEIR ENTERING, BEING PRESENT ON
OR LEAVING SUCH PROPERTIES. THE RECEIVING PARTY ACKNOWLEDGES THAT
THIS STATEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND IS
CONSPICUOUS.
11. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING THE PRINCIPLES OF
CONFLICT OF LAWS THEREOF THAT WOULD CAUSE THE LAWS OF ANOTHER
JURISDICTION TO APPLY. ANY DISPUTE ARISING OUT OF OR RELATING TO THIS
AGREEMENT, INCLUDING ANY QUESTION REGARDING ITS EXISTENCE, VALIDITY
OR TERMINATION, WHICH CANNOT BE AMICABLY RESOLVED BY THE PARTIES,
SHALL BE BROUGHT IN A FEDERAL OR STATE COURT OF COMPETENT
JURISDICTION OF THE STATE OF CALIFORNIA AND THE PARTIES IRREVOCABLY
SUBMIT TO THE JURISDICTION OF ANY SUCH COURT SOLELY FOR THE PURPOSE
OF ANY SUCH SUIT, ACTION OR PROCEEDING. A dispute shall be deemed to have arisen
when any Party notifies the others in writing to that effect. If any lawsuit or motion is filed to
enforce the provisions of this Agreement, or on account of any breach or threatened breach of the
terms and conditions thereof, whether at law or in equity, the Party who prevails in the lawsuit or
on the motion shall be entitled to reimbursement from the other Party of any and all costs, fees,
and expenses incurred by the prevailing Party, including, but not limited to, all fees and costs
incurred by or for attorneys, consultants and experts, court costs, expenses of litigation, discovery
or administration of any equitable relief.
12. Without prejudice to the rights and remedies otherwise available to the Disclosing Parties, all
Parties agree that money damages would not be an adequate remedy for any breach of this
Agreement and that the Disclosing Parties will be entitled to specific performance and other
equitable relief by way of injunction if the Receiving Party or any of the Receiving Party
Representatives breaches or threatens to breach any provision of this Agreement. The Parties
further agree to waive any requirement for the posting of a bond in connection with any such
equitable relief. The remedies in this Paragraph shall not be deemed exclusive remedies for an
actual or threatened breach of this Agreement by the Receiving Party or any of the Receiving
Party Representatives but shall be in addition to all other remedies available to the disclosing
Party, at law or in equity.
13. No amendments, changes or modifications to this Agreement shall be valid except if the same are
in writing and signed by a duly authorized representative of each of the Parties.
14. This Agreement shall inure to the benefit of and bind the respective successors, heirs,
representatives and permitted assigns of the Parties. Any assignment of this Agreement, in whole
or in part, by a Party without the other Parties prior written consent is void.
15. The Parties agree that no failure or delay by a Party in exercising any right, power or privilege
under this Agreement shall operate as a waiver thereof, unless such waiver is made expressly and
confirmed in writing by the Parties against which such waiver would be enforced, nor shall any
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single or partial exercise by a Party of any right, power or privilege hereunder preclude any other
or future exercise thereof.
16. Each Party may sign any number of identical counterparts of this Agreement with the same effect
as if the Parties signed the same document and all of which shall be considered one and the same
agreement. A copy of this Agreement signed by a Party and delivered by facsimile transmission
to the other Parties shall have the same effect as the delivery of an original of this Agreement
containing the original signature of such Party.
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IN WITNESS WHEREOF, the duly authorized representatives of the Parties have caused this Agreement
to be executed on the date first written above.
VINTAGE PRODUCTION CALIFORNIA LLC
By:
Name: ____________________
Title: ____________________
BAYSWATER EXPLORATION & PRODUCTION, LLC
By:
Name: ____________________
Title: ____________________
ZODIAC ENERGY, LLC
By:
Name: ____________________
Title: ____________________
[INSERT PARTY NAME]
By:
Name: ____________________
Title: ____________________
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EXHIBIT "A"
Attached and made part of this Confidentiality Agreement dated today, by and between
Vintage Production California LLC, Bayswater Exploration & Production LLC, Zodiac Energy
LLC and [Receiving Party].
Initial:________
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APPENDIX "B"
“Exclusion Area”
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ATTACHMENT TO THE
ZODIAC EXPLORATION INC., BAYSWATER EXPLORATION & PRODUCTION LLC
CONFIDENTIALITY AGREEMENT
Forward the access key for the Confidential Information to:
(Please fill in the following or attach a business card)
Name:
Title:
Company:
Address:
Telephone Fax:
Email Address:
Please list all users requiring access to the online data room:
(Required for individual users)
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
Name: Email: Phone:
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