The contracting parties: 1. Business name: Paroplynový cyklus, a.s. Bratislava Registered office: Magnetová 12, Bratislava 831 04, Slovak Republic Corporate licence number 35 696 168 Incorporated at the Bratislava 1 District Court, section Sa, entry no. 1134/B Acting through: Anton Bielik, chairman of the board of directors Jozef Sekerka, deputy chairman of the board of directors (hereinafter referred to as “PPC”) 2. Business name: ………………………………………………………………………. Registered office: ……………………………………………………………………. Corporate licence (registration) number: ………………………..…………………... Incorporated at: ……………………………………………………………………… Acting through: ……………………………………………………………………… ..…………………………………………………………………….. (hereinafter referred to as “the Applicant”) conclude in accordance with § 269 (2) of the Commercial Code this Confidentiality Contract with the following content (hereinafter referred to as “the Contract”): Clause 1 Definition of terms For the purposes of this Contract the individual terms shall take the following meaning: The Shares: Commercial Code: Civil Code: Selection Procedure: 5 400 registered non-bearer shares issued by PPC in the nominal value of SKK 100 000 per share, Act no. 513/1991 Coll. as amended, Act no. 40/1964 Coll. as amended, The selection procedure announced by the NPF SR on 24th Nov 2003 for the sale of its 90% shareholding in the business PPC, represented by the Shares, The material entitled “Paroplynový cyklus, a.s. Bratislava, Confidential Information Memorandum, Okt. 2003 ” intended for and handed over to Applicants registered in the Selection Procedure, which contains information on PPC, including its appendices, The National Property Fund of the Slovak Republic, registered office Drieňová 27, Bratislava, Slovak Republic, corporate licence no.: 17 333 768, An inspection of the PPC premises, which the Applicants will be allowed to undertake in the framework of the Selection Procedure and in accordance with the conditions of the Selection Procedure, An interview with the management of PPC, which the Applicants will be allowed to perform in the framework of the Selection Procedure and in
Inspection of PPC:
Interview with PPC management:
accordance with the conditions of the Selection Procedure, Information, facts, trade secrets, know-how and other data concerning or relating to PPC, for example its plant, activity, employees, advisors, business partners, founders, etc. made available to the Applicant or Entrusted Persons in the Information Memorandum, at the Inspection of PPC or at the Interview with the PPC management. Data according to the preceding sentence will not be deemed Confidential Information if: 1. it is publicly known and available at the time of concluding the Contract. 2. after concluding the Contract it has become publicly known and available in a manner other than through the breaching of this Contract by the Applicant or an Entrusted Person. 3. a duty arises on the basis of an act of law to the Applicant to disclose it. Persons entrusted, empowered or otherwise designated by the Applicant for or on behalf of an Applicant involved in the Inspection of PPC and/or the Interview with the PPC management and/or drafting of the offer in the Selection Procedure or its supporting documents and/or the performance of any other activities relating to the Applicant’s participation in the Selection Procedure (regardless of the form of their mutual legal relationship), Entities other than PPC, the Applicant or Entrusted Persons. In connection with making Confidential Information available Entrusted Persons are not considered as Third Parties only in such a scope as is essential for performing the specific activity entrusted to them on behalf of the Applicant in connection with its participation in the Selection Procedure. Clause 2 Introductory Provisions
1. The NPF SR on 24th Nov. 2003 declared the Selection Procedure for the sale of the Shares. 2. The Applicant expressed an interest in participation in the Selection Procedure. 3. For the purpose of familiarising itself with the subject of the sale in the Selection Procedure the Applicant shall receive from the NPF SR an Information Memorandum and will be able to perform an Inspection of PPC and hold an Interview with the PPC management. 4. With regard to the confidentiality of information contained in the Information Memorandum and information that the Applicant will be able to obtain at the Inspection of PPC and Interview with the PPC management and with regard to the need to maintain their confidentiality, PPC and the Applicant provide for their mutual rights and obligations in the use and protection of the Confidential Information through this Contract. Clause 3 Subject of the Contract 1. The Applicant undertakes to keep secret concerning the Confidential Information.
2. The Applicant undertakes to not disclose the Confidential Information to Third Parties, nor to allow Third Parties access to it, without the prior written consent of PPC. 3. The Applicant undertakes to use the Confidential Information only during the course of the Selection Procedure and exclusively for the purpose of decision making in connection with the submission of an offer in the Selection Procedure and the preparation of this offer. 4. The Applicant undertakes to not enable other entities to use the Confidential Information for a purpose other than that stated in point 3 of this Clause. 5. The Applicant undertakes to disclose specific Confidential Information only to those Entrusted Persons who by necessity need it for performing their specific tasks in connection with the Applicant’s participation in the Selection Procedure. 6. The Applicant undertakes to instruct each Entrusted person as to the ambit of the Confidential Information and the Applicant's obligations related to keeping secret according to this Contract, or according to legal regulations, at latest prior to the Person’s first contact with the Confidential Information. 7. The Applicant undertakes to ensure that Entrusted Persons will keep secret and/or handle the Confidential Information in the manner as the Applicant has undertaken through this Contract in respect of PPC, or as required by legal regulations. If Entrusted Persons do not keep secret concerning Confidential Information and/or will not handle Confidential Information in the manner as the Applicant has undertaken through this Contract in respect of PPC, or as required by legal regulations, the Applicant is fully liable for the consequences of such actions of the Entrusted Persons as a violation of its own duties according to the Contract or legal regulations. 8. The Applicant undertakes to notify PPC without undue delay of the unauthorised use, disclosure or publication of the Confidential Information or other breach of the secret nature of the Confidential Information from the side of the Applicant or other entity, should the Applicant itself discover this has occurred. The Applicant also undertakes to cooperate in any appropriate manner with PPC in restoring the protection of the Confidential Information and in preventing its further dissemination. Clause 4 Sanctions 1. In the case of a breach of the Applicant’s obligations according to the Contract, PPC is entitled to require from the Applicant compensation for any damages, whether direct or indirect, such as, for example, lost revenue, profits, loss of data, third party damages arisen, as well as damages ensuing from this. 2. For the case where in consequence of a breach of an obligation of the Applicant according to the Contract an obligation arises to PPC to compensate another entity (hereinafter referred to as “the Obligee”) for damages, other harm or to pay any financial compensation (hereinafter referred to as “the Penal Obligation”), the Applicant and PPC have agreed that the Applicant pursuant to the provisions of § 534 of the Civil Code shall fulfil the Penal Obligation in respect of the Obligee instead of PPC. 3. If the Applicant in any way breaches any of its obligations stated in the Contract, PPC is entitled to exercise a claim against the Applicant for payment of the Penal Obligation in the amount of SKK 1 000 000. PPC is entitled to exercise against the Applicant a claim for the payment of the Penal Obligation in the amount according to this point for each individual breach of any of the obligations. 4. An arrangement or exercising of the contractual penalty according to point 3 of this Clause shall not affect the claim of PPC in respect of the Applicant for compensation of damages arisen to PPC through a breaching of an obligation of the Applicant, and this in the full amount of the damages, thus both in the amount of the damages arisen through the breaching of the obligation to which the contractual penalty relates as well as in the amount of the damages that exceed the agreed contractual penalty. Clause 5
Common and Concluding Provisions 1. This Contract may be changed only through the written agreement of both contracting parties. 2. The contracting parties have agreed that the legal relations established through this Contract or through its breaching will be governed by the Slovak legal code. The contracting parties have agreed pursuant to the provisions of § 263 (1) of the Commercial Code that the legal relations (including the agreement on the contractual penalty) established by this Contract or through its breaching will be governed by the Commercial Code. 3. Relations between participants to the Contract that are not governed by this Contract shall be governed by the respective provisions of the Commercial Code and other related legal regulations of the Slovak Republic. The contracting parties declare that any disputes or discrepancies in the interpretation or realisation of the Contract shall be resolved through mutual negotiations. In the case of not achieving a reconciliation of the discrepancy, the dispute shall be subject exclusively to the jurisdiction of the Slovak courts. In the case where a legal relation established by this Contract or through its breaching contains also an international element, adjudication lies with the locally competent Regional Court in Bratislava. In the case that any of the provisions of this Contract become void, the validity of the other provisions remains unaffected. 4. This Contract enters into force and effect on the date of its signing by both the contracting parties. 5. This Contract is issued in duplicate, one copy being for each contracting party. 6. The contracting parties declare that they have read the text of this Contract, understood its content and as a sign of the fact that the Contract's content corresponds to their actual and free will, sign it.
On behalf of PPC: Bratislava, dated ……………2003
_________________________ Ing. Anton Bielik Chairman of the Board of Directors Paroplynový cyklus, a.s. Bratislava
_________________________ Ing. Jozef Sekerka Deputy Chairman of the Board of Directors Paroplynový cyklus, a.s. Bratislava
On behalf of the Applicant:
Bratislava, dated ……………2003