CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT This Confidentiality and Nondisclosure Agreement (this “Agreement”) dated is between ENCANA OIL & GAS (USA) INC (“Disclosing Party”) and (“Recipient”). In connection with Recipient’s desire to evaluate the possibility of entering into a transaction with Disclosing Party relating to the acquisition of the properties described in Exhibit A attached hereto and made a part hereof (the “Purposes”), Disclosing Party will furnish certain information to Recipient upon the terms and conditions set forth herein. In consideration of the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Disclosing Party and Recipient agree as follows: 1. Confidential Information. Disclosing Party will disclose and make available to Recipient certain Confidential Information for Recipient’s use in connection with the Purposes. The term “Confidential Information” as used in this Agreement shall mean all information that Disclosing Party furnishes to Recipient, whether tangible or intangible and in whatever form or medium provided, as well as all information generated by the Recipient or by its Representatives (as defined below) that contains, reflects or is derived from the furnished information. The term “Confidential Information” shall not include information that (a) is in Recipient’s possession prior to disclosure to Recipient, (b) is or becomes known to the public other than as a result of a breach of this Agreement, or (c) becomes available to Recipient on a non-confidential basis from a source other than Disclosing Party, provided that such source is not known to Recipient to be bound by a confidentiality agreement with, or other fiduciary obligations of confidentiality to, Disclosing Party. 2. Use of Confidential Information. Recipient agrees to keep the Confidential Information confidential and to use the Confidential Information solely for the Purposes and for no other purpose. Recipient may disclose the Confidential Information to such of Recipient’s officers, directors, employees, agents, advisors, consultants and representatives of Recipient or of any parent of, subsidiary of, or other entity controlled by or under common control with, Recipient (collectively, “Representatives”) who have a need to have access to such Confidential Information in order for Recipient to carry out the Purposes and who have agreed to be bound by the provisions of this Agreement. Recipient shall be responsible and liable for any use or disclosure of the Confidential Information by such parties in violation of this Agreement. Nothing herein shall be deemed to prevent disclosure of any of the Confidential Information if, in the opinion of Recipient’s legal counsel, such disclosure is required to be made in a judicial, administrative or governmental proceeding pursuant to a subpoena or other applicable order; provided however, Recipient shall give Disclosing Party prompt notice (unless notice is prohibited by order, subpoena or law) before disclosing any of the Confidential Information and, in making such disclosure, Recipient shall disclose only that portion of the Confidential Information required to be disclosed and will use reasonable efforts to obtain assurance that confidential treatment will be accorded the information. 3. Nondisclosure of this Agreement. Without the prior written consent of Disclosing Party, neither Recipient nor its Representatives shall, directly or indirectly, disclose to any third party the terms and conditions of this Agreement or of the transactions that are the subject of this Agreement.
Confidentiality Agreement 3.06.08
4. Return of Documents. Recipient agrees to return to Disclosing Party, within 5 business days after a written request by Disclosing Party, all Confidential Information (including copies thereof) which has been delivered or disclosed to Recipient, or which Recipient has obtained, and to destroy all other related Confidential Information, including, without limitation, all information prepared by Recipient or its Representatives utilizing or relating to any portion of the Confidential Information. Upon written request by Disclosing Party, Recipient shall provide a certificate of destruction of the Confidential Information by one of Recipient’s Representatives who has supervised such destruction. 5. No Representation of Accuracy or Completeness. Recipient understands and acknowledges that the Confidential Information is provided by the Disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of the information so provided. The Confidential Information is furnished by Disclosing Party as a convenience only and any reliance on or use of the Confidential Information is at Recipient’s sole risk. 6. Legal Remedies. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Disclosing Party would be irreparably harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled at law or in equity, Disclosing Party shall be entitled to seek an injunction, restraining order, specific performance and other forms of equitable relief. 7. Term. The rights and obligations of the parties hereunder shall terminate one year from the effective date hereof. 8. Assignment. Recipient may not assign, pledge or otherwise transfer its rights or delegate its duties or obligations under this Agreement without the prior written consent of Disclosing Party. Disclosing Party may assign or otherwise transfer its rights and delegate its duties or obligations under this Agreement without the consent of Recipient in connection with a sale or other transfer of all, or substantially all, of its assets, a merger, or the sale or other transfer of all or any portion of its assets relating to the Confidential Information. 9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Colorado without giving effect to the conflict of laws provisions thereof. The parties agree that any action or proceeding arising out of or related in any way to this Agreement shall be brought solely in a court of competent jurisdiction sitting in the City and County of Denver, Colorado. The parties hereby irrevocably and unconditionally consent to the jurisdiction of any such court and hereby irrevocably and unconditionally waive any defense of an inconvenient forum to the maintenance of any action or proceeding in any such court, any objection to venue with respect to any such action or proceeding and any right of jurisdiction on account of the place of residence or domicile of any party thereto. The parties hereby irrevocably and unconditionally waive the right to a jury trial in connection with any claim arising out of or related to this Agreement or to the Confidential Information. 10. Entire Agreement. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all negotiations, prior discussions or prior agreements and understandings relating to such subject matter. Neither Disclosing Party nor Recipient shall have any obligation or duty to pursue any further agreement or 2
understanding, or to proceed with respect to any additional transaction relating to the Purposes, until a definitive agreement relating thereto has been duly authorized, executed and delivered by the parties. 11. Notices. All notices and other communications required under this Agreement to be in writing shall be addressed to the parties at the addresses or facsimile numbers set forth below each party’s signature, or to such other address or facsimile number of which a party may notify the other party. 12. Miscellaneous. This Agreement may not be altered or amended, nor may any rights hereunder be waived, except by an instrument in writing and executed by the party to be charged with such amendment or waiver. No failure or delay by Disclosing Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof. This Agreement shall be binding upon the parties hereto and their respective permitted successors and assigns. Except for the parties hereto and their permitted successors and assigns, nothing in this Agreement, express or implied, is intended to confer upon any other entity or person any benefits, rights or remedies. This Agreement may be executed in counterparts and shall become operative when each party has executed and delivered at least one counterpart. This Agreement may be delivered by facsimile or similar transmission, and a facsimile or similar transmission evidencing execution shall be effective as a valid and binding agreement between the parties for all purposes. This Agreement has been executed on the dates set forth below to be effective as of the date first set forth above. DISCLOSING PARTY: ENCANA OIL & GAS (USA) INC By_______________________ Name _____________________ Title______________________ 370 17th Street - Suite 1700 Denver, CO 80202 By_________________________ Name_______________________ Title________________________ Address_____________________ ____________________________ Telephone Facsimile 720-876-5546 720-876- 6546 Telephone____________________ Facsimile_____________________ Date_________________________ RECIPIENT:
Date_______________________
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Exhibit A Properties Asset Name Paradox Basin Upstream and Midstream Assets - Utah Paradox Basin Upstream and Midstream Assets - Colorado State Utah County(s) San Juan, Grand
Colorado
Montrose, San Miguel, Dolores
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