"NON DISCLOSURE AGREEMENT NON DISCLOSURE"
NON DISCLOSURE AGREEMENT This Non Disclosure Agreement between CANDAX ENERGY INC (“Candax”) having its registered office at 130 Adelaide Street West, Suite 2700, Toronto, Ontario, Canada M5H 3P5 [Insert Full Corporate Name] (“Bidco”) having its registered office at……………..is entered into as of the …..day of July 2009. 1. Bidco and Candax wish to engage in discussions about a possible investment by Bidco in Candax. The form of that investment might include, but is not limited to, a purchase of shares in Candax, a purchase of assets owned by Candax, a farm-out of assets held by Candax and a merger between Bidco and Candax (the “Project”). The parties wish to be able to exchange information about their respective businesses and assets in confidence for the purpose of enabling them to determine whether to engage in further discussions and negotiations to advance the Project (the “Purpose”) . Each such party will be treated for the purpose of this Agreement as (the “Disclosing Party”) when providing Confidential Information to the other party and that the other party’s Representative and will be treated as (the “Receiving Party”) when being the recipient of Confidential Information from the Disclosing Party Representatives. In consideration of and as a condition to the Disclosing Party providing the Receiving Party and its Representatives with such Confidential Information each party hereby undertakes to the other and for the benefit of each party’s Representatives that it will (and that it shall procure that each of its Representatives will): (a) keep the Confidential Information disclosed to it and/or its Representatives confidential and shall not disclose it or permit it to be made available to any person, firm or company other than to its Representatives as provided in paragraph 1(d) below; (b) use the Confidential Information only for the Purpose and no other purpose whatsoever; (c) upon it or any of its Representatives deciding not to participate in the Project, or on negotiations between the parties being terminated, or on the Disclosing Party’s written request, as soon as practicably possible being defined for this purpose as within 15 days, return to the Disclosing Party all written Confidential Information and all copies thereof disclosed to it, all such Confidential Information held in any form of information storage system and, if and to the extent that the Confidential Information is incapable of being returned, destroy or delete all such Confidential Information and all copies and extracts thereof (to the extent practicable) and undertake not to attempt to recover any such Confidential Information (except that the Receiving Party and its Representatives shall be entitled to retain Secondary Information in order to comply with any legal, compliance or regulatory requirements provided that it is kept confidential in accordance with the provisions of this Agreement); (d) only disclose the Confidential Information to the Receiving Party’s Representatives with a bona fide need to know who are directly involved in the Candax Energy Inc. Non Disclosure Agreement July 2009 Project, and then exclusively for the Purpose, provided that any Representative to whom such information is made available is: i) made aware that the information received is confidential and of the terms of this Agreement; and ii) is, either subject to a general duty of confidentiality to the Receiving Party which extends to such information and provides at least the level of protection to the Receiving Party as is given by this Agreement, or has executed a written undertaking to comply with the terms of this Agreement. 2. Nothing in paragraph 1(a) to (d) in this Agreement shall apply to any Confidential Information which:- (a) Is in or comes into the public domain for any reason except the Receiving Party’s failure, or failure on the part of any Representatives of the Receiving Party to whom the Receiving Party has disclosed the Confidential Information, to comply with the terms of this Agreement; (b) Is already known to the Receiving Party at the date of disclosure to the Receiving Party without restriction on disclosure as evidenced by the Receiving Party’s written records; or (c) Is disclosed to the Receiving Party by a third without obligations of confidentiality. 3. Notwithstanding the provisions of paragraphs 1(a) to (d) and paragraph 4, the Receiving Party may disclose Confidential Information if and to the extent that the Receiving Party or its Representatives are required to so disclose by applicable law or any regulatory or government authority with jurisdiction (in which event the Receiving Party shall, unless prohibited from doing so by applicable law, inform the Disclosing Party in writing and use its reasonable endeavours to maintain the confidentiality of any Confidential Information disclosed). 4. In consideration of the representations and undertakings given by each party to the other in this Agreement and of each party evaluating the Project each party undertakes to the other, unless the other party otherwise consents, to keep confidential to the other party’s interest in the Project and the existence of any discussions between the parties and not to make any announcement or public statement or comment of any kind to any person, firm or company relating to such interest or discussions other than their respective Representatives in accordance with paragraph 1(d). 5. Nothing in this Agreement constitutes a commitment by either party or either party’s Representatives to undertake the Project and all discussions between the parties with regard to each party’s proposed participation in the Project remain subject to a formal written agreement being entered into between the parties in respect of the Project. Nothing in this Agreement implies any partnership or joint venture between the parties or makes either party the agent of the other. Candax Energy Inc. Non Disclosure Agreement July 2009 6. Each party acknowledges and agrees with the other that neither the Disclosing Party nor any of its Representatives: (a) Are making any representation or warranty ( whether express or implied) in this Agreement as to the quality, accuracy or completeness of the Confidential Information or otherwise; and (b) Will have any liability relating to the Confidential Information or any errors therein or omission therefrom. This does not exclude liability to any remedy in respect of fraudulent misrepresentation. 7. Nothing contained in this Agreement will be construed as granting any rights to the Receiving Party by licence or otherwise to any of the Confidential Information. 8. For the avoidance of any doubt each party and its Representatives may cease all discussions relating to the Project and may accept or reject any offer to enter into an agreement with any third party without giving reason therefore. 9. Each party acknowledges that damages shall not be an adequate remedy for a breach of this Agreement. Accordingly, each party agrees that the other may seek immediate injunctive relief from any such breach of these undertakings and specific performance of its rights hereunder, in addition to any other remedies available to it at law in equity. 10. This Agreement contains the entire agreement between the parties concerning the confidentiality of the Confidential Information and no waiver or variation of any term of this Agreement will be effective unless approved in writing by a representative of each of the parties to this Agreement. For the avoidance of doubt, the consent of any party that may derive a benefit under this Agreement other than the parties hereto shall not be required for any waiver, variation or termination of this Agreement, even if such waiver, variation or termination relates to or affects such benefit. 11. The obligation of the Receiving Party under this Agreement shall remain in force for a period of three (3) years from the date hereof. 12. No person who is not a party to this Agreement, other than a Representative of either party, shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. 13. This Agreement shall be governed by and construed in accordance with English law, and the parties submit to the non-exclusive jurisdiction of the English courts in respect of any claim, dispute or difference arising out of or in connection with this Agreement. 14. Notices under this Agreement shall be given in writing to the relevant party at the postal address stated herein (or to such other address as it may hereafter notify in writing to the other). 15. Each Receiving Party acknowledges and agrees that access by it/and or its Representatives to the Confidential Information may provide it with material information Candax Energy Inc. Non Disclosure Agreement July 2009 concerning the Disclosing Party which has not been publicly disclosed. Accordingly each Receiving Party may be subject to applicable securities law which could restrict the Receiving Party’s and its Representative’s ability to trade in any securities of the Disclosing Party. Each Party acknowledges that they are aware of such laws. 16. This Agreement may be validly executed by facsimile transmission and in any number of counterparts all of which together shall constitute one and the same agreement and each of which shall constitute an original. 17. For the purposes of this Agreement: “Affiliates” means any party to this Agreement any holding company or subsidiary of such party or a subsidiary of any such holding company or any partnership or company which is a subsidiary undertaking of such party or any such holding company. “Confidential Information” means information (and any copies thereof) relating to the Project/the Disclosing Party/ the Disclosing Party’s Representatives/a business in which the Disclosing Party or a Representative of the Disclosing Party has invested or is proposing to make an investment or acquisition and including the terms of this Agreement, in each case which is provided by the Disclosing Party to the Receiving Party or its Representatives before or after the date of this Agreement whether orally or in any written form: “Representatives” means (a) Affiliates; (b) Investors in any Affiliates; (c) Directors, officers, employees, advisers, managers, investment advisers, partners, general partners, agents and consultants of either party or any person names in (a) or (b) above; and (d) Any financial institution or third party with an interest in co-investing in the Project with either party to this Agreement or any Affiliate (on the proviso that the third party has previously agreed in writing to execute and be bound by this Agreement on the same terms as such party); and “Secondary Information” means internal reports, notes, or other working material prepared by the Receiving Party or its Representatives save to the extent that it contains or comprises a copy of any Confidential Information The terms “holding company”, “subsidiary” and “subsidiary undertaking” shall (wherever used in this Agreement) have the meanings given to them in sections 258, 259, 736 and 736A of the English Companies Act 1985; Candax Energy Inc. Non Disclosure Agreement July 2009 For and on behalf of Candax Energy Inc Signed: ………………………………… Name: ………………………………….. Position: ……………………………….. Date: …………………………………… For and on behalf of ……………………. Signed: ………………………………….. Name: …………………………………… Position: ………………………………… Date: ……………………………………. Candax Energy Inc. Non Disclosure Agreement July 2009