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General Confidentiality Agreement by vtc12324


General Confidentiality Agreement document sample

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									                          CONFIDENTIALITY AGREEMENT

        THIS CONFIDENTIALITY AGREEMENT (the “Agreement”) is entered into
effective as of the ______ day of _______, 2009 (the “Effective Date”) by and between
Port Dolphin Energy LLC, a Delaware limited liability company, with offices at 400
North Tampa Street, Suite 1050, Tampa, FL 33602 (“Port Dolphin”) and ____________,
________________________ with offices at __________________________________
(“_____________________”). Port Dolphin and ____________ are sometimes referred
to herein individually as a “Party” and collectively, including their respective
“Representatives” (as defined herein) as the context so permits, as the “Parties.”


       WHEREAS, Port Dolphin and/or one or more of its Affiliates (as defined herein)
is engaged in the development of a project involving offshore LNG regasification
terminals and construction and operation of related onshore and offshore facilities (the
“Project”); and

       WHEREAS, ____________ and/or one or more of its Affiliates is engaged in the
business of __________________________; and

       WHEREAS, Port Dolphin and ____________ wish to discuss, and share
information on a confidential basis about the Project (the “Transaction”);

       NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties hereby agree as follows:

       1.      Confidential Information. As used herein, the term “Confidential
Information” shall mean all information, in whatever form and of whatever nature:
       (a)      which a Party (the “Disclosing Party”) furnishes, directly or indirectly, to
another Party (the “Receiving Party,” including “Representatives” as defined herein);

        (b)      of which Receiving Party learns or to which Receiving Party is exposed
or has access as a direct or indirect result of the Transaction that in any way relates to (i)
the Project or Transaction; or (ii) the business operations, contractual relationships, or
financial status of a Party (including its Affiliates, as defined herein); or

       (c)      which Receiving Party produces or develops, whether on its own, in
conjunction with the Disclosing Party or any of its Affiliates or Representatives (as
defined herein), or otherwise that in any way relates to (i) the Project or Transaction; or
(ii) the business operations, contractual relationships, or financial status of a Party
(including its Affiliates, as defined herein);

in all cases including without limitation all reports, analyses, studies, observations, data,
contracts, and financial materials. The Parties further agree that the term “Confidential
Information” shall include without limitation the fact that Port Dolphin and
____________ have been discussing the Project, as well as the substance of such
discussions. For the purposes of this Agreement, the term “Affiliate” shall mean any
company or other legal entity that (a) controls, either directly or indirectly, a Party, (b) is
controlled, directly or indirectly, by such Party, or (c) is directly or indirectly controlled
by a company or entity which directly or indirectly controls such Party, and the term
“Confidential Information” shall have the broadest possible meaning and shall not be
limited to trade secrets or proprietary information.

         2.     Disclosure and Use of Confidential Information. Each Receiving Party
agrees to keep strictly confidential all Confidential Information received or learned by it
under this Agreement and to use such Confidential Information solely for the purpose of
evaluating the Transaction and for no other purpose. Except as expressly permitted
herein, each Receiving Party agrees not to disclose Confidential Information to any other
person or entity, and not to use the Confidential Information for the Receiving Party’s
own benefit (other than in connection with the Transaction contemplated hereunder), in
any form or manner whatsoever, either directly or indirectly, intentionally or negligently,
in whole or in part, without the prior written consent of the Disclosing Party. Each
Receiving Party agrees to limit its disclosure of Confidential Information solely to those
of its and its Affiliates’ directors, officers, employees, agents, contractors, and attorneys
(collectively, "Representatives," who shall be included in the definition of “Receiving
Party” hereunder as the context so permits) who need to know such Confidential
Information in order for such Receiving Party and/or one or more of its Affiliates to
evaluate and consummate the Transaction. Each Receiving Party shall inform any of its
Representatives to whom it intends to disclose Confidential Information of the
confidential nature of such Information and shall require such persons to consent to be
bound by the confidentiality and non-use provisions of this Agreement. Each Receiving
Party agrees to be responsible for any breach of this Agreement by any of its Affiliates or
Representatives and to take all reasonable, necessary, and appropriate efforts, whether or
not expressly listed herein, to safeguard the Confidential Information from disclosure to
any person or entity, and from any use, other than as expressly permitted hereby.

       3.       Limitation on Obligations. The obligations set forth in paragraph 2
above shall not apply to any Confidential Information which a Receiving Party can
demonstrate, by written documentation or other tangible evidence,

       (a)     was already in its possession prior to the time of this Agreement and was
not acquired by it, directly or indirectly, from the Disclosing Party or its Affiliates;

       (b)     was in the public domain at the time of disclosure to it hereunder or
subsequently became part of the public domain through no fault of such Receiving Party;

        (c)     was lawfully received by it from an independent source (other than the
Disclosing Party, its Affiliates, or any of its or their respective Representatives) which
was not subject to a confidentiality agreement regarding the Confidential Information or
otherwise prohibited from transmitting the Confidential Information to such Receiving
Party; or

        (d)     is legally required to be disclosed (i) to a court or governmental agency
under applicable laws or regulations or (ii) to a private party pursuant to a valid subpoena
or other lawful process (as provided more fully below).

In the event that a Receiving Party receives a request (whether by oral questions,
interrogatories, requests for information or documents, subpoena, civil investigative
demand, or similar process) to disclose all or any part of the Confidential Information,
such Receiving Party shall provide the Disclosing Party with prompt written notice of
such request so that the Disclosing Party (at its sole cost and expense) may seek a
protective order or other appropriate remedy and/or waive compliance with the provisions
of this Agreement. Such Receiving Party shall reasonably cooperate with the Disclosing
Party in seeking such protective order or other remedy, and shall take reasonable actions
to protect such Confidential Information pending resolution of the Disclosing Party’s
efforts to seek a protective order or other remedy. Regardless of whether such protective
order, other remedy, or waiver is obtained, such Receiving Party will disclose only that
portion of the Confidential Information which it is legally compelled to disclose and will
exercise its reasonable efforts to obtain reliable assurance that such disclosed
Confidential Information will be treated as confidential.

        4.     Return of Confidential Information. All of the Confidential
Information disclosed to a Receiving Party pursuant to this Agreement shall remain the
property of the Disclosing Party, and no right or license to utilize any of the intellectual
property of the Disclosing Party is granted hereunder. Upon the expiration or termination
of this Agreement, or at such earlier time as the Disclosing Party shall request in writing,
such Receiving Party shall return all of such written or electronic Confidential
Information to the Disclosing Party or shall certify in writing that all copies and
reproductions of such Confidential Information in such Receiving Party’s possession or in
the possession of others to whom disclosure was made have been destroyed.

         5.      Remedies. Each Receiving Party acknowledges and agrees that the
Disclosing Party would not have an adequate remedy at law and would be irreparably
harmed in the event that such Receiving Party fails to perform any of the provisions of
this Agreement in accordance with their specific terms or otherwise breaches such
provisions. Accordingly, each Receiving Party (including its Representatives) agrees
that, in addition to all other remedies available at law or in equity, the Disclosing Party
shall be entitled to injunctive or similar relief to prevent any anticipated, threatened, or
continuing breach of this Agreement, including without limitation to compel performance
of the terms of this Agreement. Therefore, if any Party hereto shall institute any action or
proceeding to enforce the provisions hereof, by injunction or other equitable relief, any
Party against whom such action or proceeding is brought hereby waives the claim or

defense therein that such Party has an adequate remedy at law, and such Party shall not
urge in any such action or proceeding the claim or defense that such remedy at law exists.

         6.     Non-Waiver. Each Party further acknowledges and agrees that no
failure, omission, or delay by any other Party 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 future exercise of any such right, power, or privilege. A waiver of
any provision of this Agreement, or of a breach thereof, shall only be effective if it is in
writing, signed by an authorized officer of the waiving Party and specifying the details of
the waiver, and shall not operate as subsequent waiver of any provision or breach,
whether related or not.

         7.       Survival of Obligations. The Parties’ rights, duties, and obligations
under this Agreement shall survive until either: (i) completion or termination of the
Project, or (ii) the third anniversary of the Effective Date, notwithstanding, inter alia, any
prior termination or cessation of the Parties’ discussions regarding, or the abandonment
of, the Project or Transaction, whichever occurs later. Notwithstanding the foregoing, in
the event that the Parties enter into a further agreement with one another for the provision
of work or services in connection with the Project, then the terms of this Agreement shall
be extended until either: (i) completion or termination of the Project, or (ii) the third
anniversary of the effective date of such subsequent agreement, notwithstanding, inter
alia, the abandonment of the Project or Transaction or the termination of such subsequent
agreement, whichever occurs later.

        8.      Choice of Law. The validity, construction, and enforcement of, and the
remedies under, this Agreement are subject to and governed by, and shall be construed
under, the laws of Florida, without giving effect to its principles or rules regarding
conflicts of laws.

        9.       Entire Agreement. This Agreement contains the entire understanding of
the Parties with respect to the treatment of Confidential Information and supersedes all
prior oral or written communications, negotiations, understandings, or agreements of any
kind with respect thereto. This Agreement shall be amended only by a written instrument
executed by all of the Parties; provided, however, that Representatives (who are
unnecessary parties for purposes of amendment) may only be bound by written
amendments to which they consent in writing. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original for all purposes and all
of which together shall constitute the entire Agreement. Copies and facsimile signatures
shall be deemed original and binding signatures. All terms and conditions of this
Agreement shall be rights of, and binding upon, the successors and permitted assigns of
any Party hereto.

       10.      Assignment. Because this Agreement is a personal undertaking based
upon the relationship of the Parties, no Party shall assign or transfer the Agreement
without the prior written consent of the other Parties in their sole discretion. Any other
attempted assignment or transfer shall be void.

        11.      Severability and Construction. If any provision of this Agreement is
declared invalid, illegal, or unenforceable for any reason by a court of competent
jurisdiction, that provision shall be modified by the court to the extent necessary to render
it enforceable or valid consistent with its original purpose, if possible, and if impossible,
shall be severed from the Agreement, with the remaining provisions continuing in full
force and effect. The Parties have reviewed, and have had an opportunity to comment
upon, this Agreement with the benefit of legal counsel if desired. Any rule or principle of
contractual construction that would otherwise require any aspect of this Agreement to be
interpreted against the Party primarily responsible for its drafting shall not be employed in
the interpretation hereof. The Parties agree that the application of such a rule or principle
of construction would be inappropriate and contrary to the intent of the Parties.

        12.      Notices. All notices or communications required or permitted under this
Agreement shall be in writing, delivered in person, by receipted hand delivery; by mail,
return receipt requested; by recognized overnight delivery service; or by confirmed
facsimile transmission to the addresses of the Parties appearing below their respective
signature blocks, unless notice of its change of address has been previously delivered by a
Party in accordance with this provision.

        13.       Legal Expenses. Should any Party employ an attorney or attorneys to
enforce any of the provisions hereof or to protect its interest in any matter, involving,
arising out of, or otherwise relating to this Agreement, or to recover damages for the
breach of this Agreement, the Party prevailing shall be entitled to recover from the non-
prevailing Party(s) all reasonable fees, costs, charges and expenses, including but not
limited to, arbitration fees and costs, and attorney and legal assistant fees, expended or
incurred in connection therewith from the initial request for redress through mediation,
arbitration, trial, appeal, collection, and/or bankruptcy.

        14.      Dispute Resolution. The parties expressly agree that any dispute arising
out of the terms of this Agreement shall be resolved by neutral, binding arbitration. The
arbitrator shall be mutually agreed upon by the parties. In the event that the parties
cannot agree on an arbitrator, then the parties agree to employ the American Arbitration
Association to select an arbitrator. Any arbitrator chosen shall have all of the
qualifications appropriate to resolve the matter in dispute. The arbitrator, in the award,
shall identify the prevailing party as to each issue before the arbitrator for purposes of
awarding attorneys’ fees, as set forth in Paragraph 13, above. The arbitrator shall also
determine the amount of such fees and award the same to the prevailing party. Any
ruling, order, or judgment of the arbitrator shall be entitled to be ratified and upheld in the
form given in any court of competent jurisdiction. The Florida Rules of Civil Procedure
shall apply to all arbitration proceedings hereunder, and the parties shall have all those
discovery rights provided in said Rules. All arbitration proceedings shall remain

       IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
an Agreement under seal effective as of the Effective Date.

Port Dolphin Energy LLC

By: _______________________________
Name: ____________________________
Title: _____________________________
Attn: ___________________

Port Dolphin Energy LLC
400 North Tampa Street
Suite 1050
Tampa, FL 33602
Fax: 1-813-386-2069


By: ______________________________
Name: ____________________________
Title: _____________________________
Attn: ____________________


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