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Confidentiality Agreement & Virtual Data Room Rules and Procedures
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AGREEMENT AND PROCEDURES
INTRODUCTION
A. Endeavour may agree to make available certain confidential information to Recipient regarding the Purpose on the basis that Recipient preserves the confidentiality of Endeavour's information on the terms of this agreement.
B. Confidential information will only be disclosed by Endeavour in consideration of Recipient’s confidentiality obligations set out in this agreement.
TERMS OF THIS AGREEMENT
1. INTERPRETATION
1.1 Definitions: In this agreement, unless the context requires otherwise:
“Confidential Information” means:
(a) all information (in any form) which is disclosed to Recipient by Endeavour in connection with the Purpose, or relating to the business, operations or affairs of Endeavour, or of Endeavour's related companies;
(b) any copies of any of the information described above or any material derived from that information; and
(c) the fact that discussions are taking place in connection with the Purpose;
“Purpose” means the possible investment by the Recipient in funds managed by Endeavour;
“related company” has the same meaning as in the Companies Act 1993, but with that meaning extended by reading 2(3) of that Act as if “company” included any body corporate, wherever incorporated and “related companies” will be construed accordingly; and
“Representatives” means, in relation to a party:
(a) any related company of that party; and
(b) any director, officer, employee, representative or agent of and any consultant or professional adviser to, that party or any related company of that party.
1.2 Interpretation: In this agreement, unless the context requires otherwise:
(a) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done;
(b) “person” includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, or any Governmental Authority, in each case whether or not having a separate legal personality;
(c) a reference to a party to this agreement or any other document includes that party’s personal representatives, successors and permitted assigns;
(d) the headings are for ease of reference only and are to be ignored in the interpretation of this agreement;
(e) “including”, “other” and “otherwise” and similar words do not imply any limitation;
(f) a law includes common law and any constitution, decree, judgment, legislation, regulation, order, ordinance, by-law, statute or other legislative measure;
(g) the singular includes the plural and vice versa, and words importing one gender include the other gender;
(h) a reference to a particular statute, statutory provisions or subordinate legislation is a reference to it as it is in force from time to time taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts and subordinate legislation for the time being in force made under it; and
(i) a reference to any document or agreement (including this agreement) includes a reference to that document or agreement, together with any schedules or annexures, as amended, novated or replaced from time to time.
2. CONFIDENTIALITY
2.1 Confidentiality Obligations: Recipient will keep confidential and not disclose to any person any Confidential Information except as provided for in this agreement.
2.2 Authorised Disclosure: Notwithstanding clause 2.1 but subject to clause 2.3, Recipient may disclose the Confidential Information to its Representatives but only on a strictly need to know basis and only in relation to the Purpose.
2.3 Recipient's Obligations Before Disclosure: Recipient will ensure that before making any disclosure of the Confidential Information to its Representatives that all such persons are made fully aware of Recipient's obligations of confidence under this agreement and that each of them:
(a) agrees to comply with those obligations; and
(b) if required by Endeavour, enters into a confidentiality undertaking on terms acceptable to Endeavour.
Recipient agrees that it is, and will be, wholly responsible for all acts and omissions of each of its Representatives concerning any Confidential Information disclosed to them.
2.4 Limits on Obligations: Recipient will not have to observe any duty of confidentiality concerning Confidential Information which:
(a) Recipient shows it already knew at the time of disclosure and which came into Recipient's possession otherwise than by breach of any confidentiality obligation owed to Endeavour;
(b) at the time of disclosure is in, or subsequently enters, the public domain otherwise than by breach of any duty of confidentiality owed to Endeavour;
(c) is disclosed to Recipient on a non-confidential basis by a third party who is not bound by a confidentiality obligation; or
(d) Endeavour has expressly agreed in writing that Recipient may disclose.
2.5 Disclosure required by law: In the event that Recipient or one of its Representatives is required by:
(a) law;
(b) court order;
(c) regulatory authority having jurisdiction over Recipient or its Representative; or
(d) the listing rules of any stock exchange,
to disclose Confidential Information, such disclosure may only be made after Endeavour has been notified and has had a reasonable opportunity to oppose such disclosure on reasonable grounds and/or consult with Recipient or its Representative as to the timing and context of any such disclosure.
3. USE AND OWNERSHIP OF CONFIDENTIAL INFORMATION
Recipient will only use the Confidential Information in connection with the Purpose. The Confidential Information will remain Endeavour's property.
4. SECURITY
Recipient will:
(a) at all times effect and maintain adequate security measures to preserve the confidential nature of the Confidential Information; and
(b) keep all Confidential Information securely stored to prevent any unauthorised access to or use of it.
5. COPYING
Recipient will not reproduce or electronically store any Confidential Information except:
(a) to the extent strictly necessary for the Purpose; or
(b) with Endeavour's prior written consent.
6. RETURN OF CONFIDENTIAL INFORMATION
Recipient will return to Endeavour or, at Endeavour's option, destroy and confirm in writing the destruction of, all records and copies of the Confidential Information held by or on behalf of Recipient (in any form) immediately on Endeavour's request or on completion of the Purpose, without request.
7. REPRESENTATIONS OR WARRANTIES
The Confidential Information is provided solely on the basis that Recipient will be responsible for Recipient's own independent evaluation of the Confidential Information. Endeavour makes no representations or warranties (express or implied) about the accuracy, completeness and currency of the Confidential Information. Endeavour will not have any liability to Recipient as a result of the Recipient's use of the Confidential Information.
8. REMEDIES
Endeavour will be entitled to all equitable remedies, including injunction and specific performance if there is any breach of the terms of this agreement by Recipient, in addition to all other remedies available to Endeavour.
9. INDEMNITY
Recipient indemnifies Endeavour against all actions, proceedings, calls, claims, demands, losses, damages, costs, expenses or liabilities of any kind which Endeavour may suffer or incur as a result of:
(a) any breach of this agreement by Recipient; or
(b) acts or omissions of any person that has received any Confidential Information from or through the Recipient which would have constituted a breach of this agreement had they been acts of Recipient.
10. BENEFIT OF UNDERTAKINGS
For the purposes of the Contract (Privity) Act 1982, the undertakings given by Recipient and its Representatives in this agreement are given for the benefit of Endeavour and its related companies and any related company subsequently incorporated by Endeavour and are enforceable by any one of them.
11. SEVERABILITY
Any illegality, unenforceability or invalidity of any provision of this agreement will not affect the legality, enforceability or validity of the remaining provisions of this agreement.
12. COSTS
Each party will bear its own legal costs for the preparation of this agreement. The Recipient will bear all costs involved in its assessment and consideration of the Confidential Information and in complying with its obligations under this agreement.
13. DURATION OF OBLIGATION OF CONFIDENCE
Recipient’s obligations under this agreement will continue indefinitely, except to the extent that such obligations may be varied, superseded or negated in any written agreement that eventuates from the Purpose.
14. GOVERNING LAW
This agreement is governed by New Zealand law.
VIRTUAL DATA ROOM RULES AND PROCEDURES
15. INTRODUCTION
15.1 This following sets out the procedures to be followed in relation to the conduct of due diligence by a party (or parties) and its representatives (together the "Recipient") agreed to by Endeavour i-Cap Limited on behalf of a new fund to be formed (the "Fund") in connection with a possible investment by the Recipient (the "Transaction").
15.2 Participation by the Recipient in the due diligence process (including the review of material in the virtual data room ("Data Room") or any other information made available) will constitute acceptance of, and agreement to be bound by, these Data Room Rules and Procedures ("rules and procedures").
16. CONFIDENTIALITY
16.1 All information made available by or on behalf of the Fund or any of its related companies or their respective representatives during the due diligence process is confidential and is subject to the confidentiality agreement entered into with the Fund ("Confidentiality Agreement"), and the Disclaimer set out in Schedule 1 of these rules and procedures ("Information").
16.2 All Information made available by or on behalf of the Fund is provided solely for the purpose of due diligence in respect of the Transaction and may only be used by the Recipient for such purpose. The Recipient must comply with the Confidentiality Agreement and all relevant laws when making use of Information made available by or on behalf of the Fund in connection with the due diligence process.
16.3 Any breach or potential breach of the Confidentiality Agreement by the Recipient will be regarded as a serious matter. The Fund reserves the right (without waiving, limiting or excluding any other right or remedy the Fund may have), to exclude the Recipient from further participation in the due diligence process if there is any breach of the Confidentiality Agreement or any requirement of these rules and procedures.
17. DATA ROOM CO-ORDINATOR
17.1 All questions and enquiries relating to information in the Data Room or its operation should be directed to the Data Room Co-ordinator:
Jo-Anne Newton
Telephone: 04 499 5140
Fax: 04 499 5141
Email: jnewton@ecap.co.nz
17.2 The Recipient may not, under any circumstances, communicate with or contact any personnel of the Fund in relation to the Transaction or the due diligence process.
18. RECIPIENT’S NOMINATED CONTACT
18.1 Prior to access to the Data Room being granted, the Recipient must nominate a single contact person to co-ordinate access to the Data Room and the submission of questions and to whom all communications and general liaison can be directed. The Recipient must also nominate an alternative contact person in case this person is unavailable.
19. ACCESS TO DATA ROOM
19.1 A list setting out the details of each person who will have access to the Data Room must be provided by the Recipient’s nominated contact person. Access to the Data Room will not be granted until the following details relating to each person are provided:
(a) name;
(b) employer;
(c) email address; and
(d) telephone number.
19.2 Following receipt by the Fund of the required details, each person who will have access to the Data Room will be sent an email containing the virtual data room web address, and their log-in name and password.
19.3 Log-in names and passwords may not be shared with or used by any person for whom the required details have not been provided.
19.4 The Recipient is responsible for the actions of all persons associated with the Recipient who access the Data Room.
19.5 The Fund will nominate and advise the Recipient of the date upon which access to the Data Room will be available.
19.6 The Fund reserves the right to close the Data Room at any time.
19.7 The Fund may, without stating any reason, remove or deny access to the Data Room for any person. The Fund also reserves the right to make changes to the Data Room without providing prior notice to the Recipient.
19.8 The Fund, its representatives and advisers do not undertake or accept any obligation to provide any additional or updated information, or to correct any inaccuracies or discrepancies in Information provided in the Data Room, or to notify any person should any such Information cease to be correct after the date hereof or the date of provision, as the case may be.
20. CONTENTS OF DATA ROOM
20.1 The Information provided in the Data Room is not intended to be exhaustive and must be considered subject to the Disclaimer Statement set out in Schedule 1.
20.2 No copying: The Recipient shall warrant that it will not copy, nor permit to be copied, any information and provide to the Fund a certificate in a form acceptable to the Fund, signed by a director of the Recipient or any other officer of the Recipient approved by the Fund, confirming that clause 6.2(a) has been complied with in full within 10 working days of being requested to do so by the Fund.
20.3 The Fund also reserves the right to redact any part of a document in the Data Room.
21. ELECTRONIC STORAGE MEDIA
21.1 Where the Fund provides the Recipient with a CD-ROM or other electronic storage media containing copies of Information contained in the Data Room or other material relating to the Transaction, the Fund may apply additional rules or procedures or vary existing rules or procedures relating to the use of such electronic storage media.
22. CONDUCT OF ON-LINE REVIEW
22.1 Individuals must, when accessing the Data Room:
(a) take all necessary steps to ensure that no Information contained in the Data Room is visible to, or capable of being viewed by, other persons;
(b) not leave their computer unattended; and
(c) ensure that they log out when they have finished using the Data Room.
22.2 The Recipient shall procure that its representatives submit to any other reasonable security regulations and procedures of the Fund notified to it from time to time.
23. TERMINATION
23.1 The Fund reserves the right to terminate or exclude the Recipient from the due diligence process at any time, for any reason, by giving notice to the Recipient’s nominated contact person. Such notice may be with immediate effect.
23.2 The Recipient must, during and from the conclusion of the due diligence process, continue to deal with the Information obtained from the due diligence process in accordance with the requirements imposed by the Confidentiality Agreement.
24. DEEMED ACCEPTANCE
24.1 Participation in the due diligence process by the Recipient is deemed to constitute:
(a) acceptance by the Recipient, and any Representative who receives due diligence Information, of the rules and procedures set out in these rules and procedures and the Disclaimer Statement set out in Schedule 1; and
(b) an acknowledgement that each of the parties described in paragraph 11.1(a) above has seen a copy of the Confidentiality .Agreement and is bound by the terms of that Agreement and these rules and procedures.
25. VARIATIONS
The Fund reserves the right to modify, at any time and without prior notice, the investment process or the terms of these rules and procedures. The Fund may also at any time depart, in any way, from these rules and procedures in respect of any one or more persons or from the stated investment process, including by waiving irregularities.

SCHEDULE 1: DISCLAIMER STATEMENT
1. The Fund and its representatives reserve the right at any time to provide additional or different information to any party without prior notice to the other prospective parties.
2. No Information provided in the Data Room will form the basis of any contract. Any potential investor will be required to acknowledge in the appropriate agreements that it has not relied on, or been induced to enter into such agreement by, any representation or warranty, except as expressly set out in such agreement.
3. Information provided in the Data Room has been prepared solely for general information purposes and does not purport to contain all of the information that may be required to evaluate any proposed Transaction and any recipient of such information should conduct its own independent analysis of the Fund and the data contained or referred to in the Data Room.
4. Neither the Fund nor its representatives nor any of their respective affiliates, directors, employees or advisers are, or will be, responsible for any costs incurred by the Recipient in reviewing this document or considering the Transaction.
5. The Information contained in the Data Room was obtained from the Fund and other sources and has not been independently verified. Any estimates, projections, targets or forecasts contained in the Data Room involve significant elements of subjective judgment and analysis which may or may not be correct.
6. Neither the Fund nor its representatives nor any of their respective affiliates, directors, employees or advisers makes any representation or warranty, express or implied, as to the accuracy or completeness of the Information contained in the Data Room or otherwise made available nor as to the reasonableness of any assumption contained in the Information. Any liability for any statements, opinions, information or matters (express or implied) arising out of, contained in or derived from, or for any errors or omissions from or failure to correct, any Information (including in respect of direct, indirect or consequential loss or damage or in negligence) is expressly disclaimed.
7. Nothing contained in the Data Room is, or shall be relied upon as, a promise or representation, whether as to the past or the future. The Recipient, agrees that it waives, and will not take action in relation to, any rights it may have against, the Fund, and its representatives and any of their respective affiliates, directors, employees or advisers in relation to these rules and procedures.

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