AGREEMENT ON CONFIDENTIALITY
AGREEMENT
ON CONFIDENTIALITY
between
ABN
AMRO HOLDING N.V.
and
THE
ROYAL BANK OF SCOTLAND GROUP PLC
TABLE
OF CONTENTS
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1.
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CONFIDENTIALITY
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4
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2.
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NO-TALK
AND NON-SOLICITATION
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7
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3.
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MISCELLANEOUS
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8
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4.
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DISPUTES
AND GOVERNING LAW
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9
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2
AGREEMENT
ON CONFIDENTIALITY
THE
UNDERSIGNED
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1.
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ABN
AMRO Holding N.V., a public company with limited liability
(naamloze vennootschap) incorporated under the laws of the
Netherlands, having its registered seat at Amsterdam, and its address
at
Xxxxxx Xxxxxxxxxx 00, 0000 XX, Xxxxxxxxx, xxx Xxxxxxxxxxx (hereinafter:
"ABN AMRO"); and
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2.
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The
Royal Bank of Scotland Group plc, a public company incorporated
under the laws of United Kingdom having its head office at Edinburgh,
and
its address at Xxxxxxxxx, XX00 0XX, Xxxxxxxxx, Xxxxxx Xxxxxxx
(hereinafter:
"RBS");
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ABN
AMRO
and RBS are hereinafter also individually referred to as a
"Party" and collectively as the
"Parties".
WHEREAS
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A
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RBS
has, together with Fortis S.A./N.V. and Banco Santander Central Hispano
S.A. (hereinafter referred to as the "Consortium"),
expressed interest in a transaction for or involving ABN AMRO and
the
Consortium by way of a public offer, a merger, asset transfer or
any
alternative transaction structure with ABN AMRO and any one or more
of the
Consortium parties (including transactions involving subsidiaries
of ABN
AMRO, except as provided otherwise in recital B) (the
"Transaction").
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B
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A
potential acquisition by RBS or any one or more of the Consortium
parties
of ABN AMRO North America Holding Company and its downstream subsidiaries
and group companies is for the purposes of this confidentiality agreement
(the "Agreement") excluded from the Transaction.
Information in respect of such potential acquisition of ABN AMRO
North
America Holding Company and its downstream subsidiaries and group
companies may be provided to RBS or any one or more of the Consortium
parties subject to a separate confidentiality
agreement.
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C
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The
Parties wish to lay down in writing their agreement on confidentiality
and
certain other matters concerning their
discussions.
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3
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D
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Fortis
S.A./N.V. and Banco Santander Central Hispano S.A. may each enter
into a
confidentiality agreement with ABN AMRO which is substantially identical
to this Agreement.
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NOW
HEREBY AGREE AS FOLLOWS
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1.
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CONFIDENTIALITY
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1.1.
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Within
the framework of the discussions regarding the Transaction, the Parties
may furnish each other with certain information of a confidential
nature
relating to each other, their respective group companies and/or their
businesses. The terms on which such information is furnished are
set out
in this Agreement.
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1.2.
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For
the purpose of this Agreement, "Confidential Information"
shall mean:
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a.
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information
or data of whatever nature relating to ABN AMRO, its group companies
and/or its business which has been or will be supplied to the Consortium
or RBS or their advisers by or on behalf of ABN AMRO in connection
with
the Transaction in writing, electronically, visually, orally or otherwise,
including any information or data obtained by the Consortium or RBS,
in
writing, electronically, visually, orally or otherwise, through
discussions with the management, employees and/or advisers of ABN
AMRO,
together with any such information contained in reports, analyses,
compilations, studies or other documents or data prepared by the
Consortium or by RBS or on the Consortium's or RBS' behalf, except
for
information (i) which is in the public domain other than as a result
of a
breach by RBS (or by any person to whom disclosure of information
is made
as permitted under this Agreement) of the obligations imposed by
this
Agreement, or (ii) which is or has become available to RBS on a
non-confidential basis (directly or indirectly) from a source which
was
not prohibited from disclosing such information by a legal, contractual
or
fiduciary obligation to ABN AMRO (the "ABN AMRO
Information"); and
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b.
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information
or data of whatever nature relating to RBS, its group companies and/or
its
business which has been or will be supplied to ABN AMRO or its advisers
by
or on behalf of RBS in connection with the Transaction, in writing,
electronically, visually, orally or otherwise, including any information
or data obtained by ABN AMRO, in writing, electronically,
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4
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visually,
orally or otherwise, through discussions with the management,
employees
and/or advisers of RBS, together with any such information contained
in
reports, analyses, compilations, studies or other documents or
data
prepared by ABN AMRO, or on ABN AMRO's behalf, except for information
(i)
which is in the public domain other than as a result of a breach
by ABN
AMRO (or by any person to whom disclosure of information is made
as
permitted under this Agreement) of the obligations imposed by
this
Agreement, or (ii) which is or has become available to ABN AMRO
on a
non-confidential basis (directly or indirectly) from a source
which was
not prohibited from disclosing such information by a legal, contractual
or
fiduciary obligation to RBS (the "RBS
Information").
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1.3.
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Each
Party hereby irrevocably undertakes that it and each of its directors,
employees and advisers (the "Representatives")
will:
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a.
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use
the Confidential Information only for the purpose of discussions
regarding
and the preparation of the Transaction, the valuation of ABN AMRO
and RBS
respectively and their group companies and their respective businesses
and
not in any other way or for any other
purpose;
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b.
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treat
and safeguard as private and confidential all Confidential Information
at
all times and keep any copies thereof secure in such way so as to
prevent
unauthorised access by any third
party;
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c.
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not
at any time, without the prior written consent of the other Party
disclose
or reveal the Confidential Information to any person or other party
whatsoever, other than (i) to its Representatives (which excludes,
for the
avoidance of doubt, any shareholders or providers of financing) in
as far
as they are required in the course of their duties to receive and
consider
the same for the purpose as provided for in Clause 1.3 (a) all of
whom
shall be informed of the confidential nature of the Confidential
Information and in respect of each of whom the relevant Party shall
be
responsible to procure that they adhere to the terms and conditions
of
this Agreement as if they were a party thereto or (ii) to each of
Fortis
S.A./N.V. and Banco Santander Central Hispano S. A. and their respective
Representatives,
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5
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provided
that such member of the Consortium has entered into a
confidentiality agreement with ABN AMRO in substantially identical
terms
to this Agreement,
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d.
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if
disclosure of Confidential Information is made in accordance with
this
Agreement to any third party (other than to Fortis S.A./N.V., Banco
Santander Central Hispano S. A. or any of their respective
Representatives), procure that such party adheres to the terms and
conditions of this Agreement as if it were a party thereto, while
the
disclosing Party shall be jointly and severally liable with such
third
party for any breach of such third party of this Agreement;
and
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e.
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if
disclosure of Confidential Information is made in accordance with
this
Agreement to Fortis S.A./N.V., Banco Santander Central Hispano S.
A. or
any of their respective Representatives, the relevant member of the
Consortium will be liable for any breach by such party or its
Representatives of the terms of its confidentiality agreement with
ABN
AMRO referred to in Clause 1.3 sub
(c).
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1.4.
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RBS
undertakes towards ABN AMRO with respect to the ABN AMRO Information
and
ABN AMRO undertakes towards RBS with respect to RBS Information,
each of
them also with respect to its Representatives, to, on demand, return
or
destroy all such Confidential Information and any copies which may
have
been made of documents containing such Confidential Information.
Notwithstanding the foregoing and without prejudice to the duties
of
confidentiality regarding such Confidential Information set out in
this
Agreement, the Parties shall be permitted to retain (i) 1 (one) copy
of
the Confidential Information as required by any applicable law or
regulation or competent authority or internal compliance policy and
(ii)
copies of any computer records and files containing Confidential
Information which have been created by automatic archiving and back-up
procedures. The return or destruction of Confidential Information
shall
not release a Party from any other obligation under this
Agreement.
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1.5.
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Nothing
in this Agreement shall prohibit disclosure of Confidential Information
if, and to the extent that, such disclosure is compelled by applicable
law
or regulations, by the rules or other requirements of any relevant
stock
exchange or other competent regulatory body or by any order of a
court of
competent jurisdiction, provided that the disclosing
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6
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Party
shall, to the extent permitted, promptly notify the other Party
in writing
if any Confidential Information is so required to be disclosed,
with a
view to providing the other Party, to the extent reasonably possible,
the
opportunity to contest such disclosure or to agree on the timing
and
content of such disclosure or seek other appropriate
remedies.
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1.6.
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The
Confidential Information shall remain the exclusive property of the
disclosing Party. The Parties acknowledge that no right or licence
is
granted in relation to any Confidential
Information.
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1.7.
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Neither
Party nor any of its respective Representatives gives any representation
or warranty, express or implied, as to the accuracy or completeness
of the
Confidential Information, and neither Party shall have any liability,
except in case of wilful misconduct (opzet) or gross negligence
(grove xxxxxx) on its part, to the other Party or any other
person, with respect to the other Party's or other person's use of
the
Confidential Information.
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1.8.
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The
obligations under this Clause 1 shall expire upon the earlier of
(i) the
completion of the Transaction and (ii) 12 (twelve) months following
the
date on which the discussions between ABN AMRO and RBS terminate
as
evidenced by written notice of ABN AMRO or
RBS.
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2.
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NO-TALK
AND NON-SOLICITATION
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2.1.
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None
of the Parties and their respective Representatives shall without
the
prior written consent of the other Party, initiate any contact (except
in
relation to discussions regarding the Transaction, with the current
members of the board of directors of RBS and the management board
and
supervisory board of ABN AMRO and other individuals specifically
designated by each Party in writing) concerning the Transaction with
directors, officers, employees, former employees, customers, suppliers,
external advisors or joint venture partners of the other Party. This
obligation shall expire upon the earlier of (i) the completion of
the
Transaction and (ii) 12 (twelve) months following the date on which
the
discussions between ABN AMRO and RBS terminate as evidenced by written
notice of ABN AMRO or RBS.
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2.2.
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Until
the earlier of (i) the completion of the Transaction and (ii) 12
(twelve)
months following the date on which the discussions between ABN AMRO
and
RBS terminate as evidenced by written notice of ABN AMRO or RBS,
none of
the Parties and their respective
Representatives
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7
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shall,
directly or indirectly, initiate or maintain contact (except for
those
contacts made in the ordinary course of business) with any director
or
employee of the other Party with an income of more than EUR 100,000
with a
view to hiring them as an employee, director, consultant or otherwise,
except with the express permission of the other Party. The Parties
acknowledge and agree that general advertising or other general
recruitment activities (not specifically targeted at the other
Party's
employees, officers and directors) shall not be deemed a violation
of this
Clause 2.
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3.
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MISCELLANEOUS
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3.1.
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Unless
agreed otherwise in writing, all fees and expenses incurred by the
Parties
in connection with this Agreement and the investigation and preparation
of
the Transaction shall be paid by the Party incurring such
expense.
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3.2.
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Neither
the disclosure of any Confidential Information nor anything else
in this
Agreement will constitute an offer by or on behalf of either Party.
Neither Party will be under any obligation to accept any offer or
proposal
that may be made by or on behalf of the other Party. Without prejudice
to
the foregoing, neither Party shall have any obligation to accept
or
otherwise respond to any offer or proposal that may be made, irrespective
of the contents of such offer or
proposal.
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3.3.
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Each
Party confirms that it is acting as principal on its own account
and not
as agent or broker for any other
person.
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3.4.
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If
at any time any provision of this Agreement is or becomes illegal,
invalid
or unenforceable in any respect under the law of any jurisdiction,
that
shall not affect or impair (i) the legality, validity or enforceability
in
that jurisdiction of any other provision of this Agreement, or (ii)
the
legality, validity or enforceability under the laws of any other
jurisdiction of that or any other provision of this Agreement, the
Parties
shall replace the invalid or non-binding part by provisions which
are
valid and binding and the legal effect of which, given the contents
and
purpose of this Agreement, is, to the greatest extent possible, similar
to
that of the invalid or non-binding
part.
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3.5.
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The
Parties hereby waive (i) their rights under Articles 6:265 to 6:272
of the
Dutch Civil Code (Burgerlijk Wetboek) to rescind
(ontbinden) or demand in legal proceedings the rescission
(ontbinding) of this
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8
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Agreement
and (ii) their rights to annul and to demand in legal proceedings
annulment (vernietiging) of this
Agreement.
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4.
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DISPUTES
AND GOVERNING LAW
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4.1.
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This
Agreement shall be governed exclusively by and construed in accordance
with the laws of the Netherlands.
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4.2.
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All
disputes arising in connection with this Agreement, and any agreements
resulting therefrom, shall be finally settled in accordance with
the
Arbitration Rules of the Netherlands Arbitration Institute, including
the
possibility of arbitral summary proceedings (arbitraal kort
geding). The arbitral tribunal shall comprise of 3 (three)
arbitrators. The place of arbitration shall be Amsterdam. The arbitral
procedure shall be conducted in the English language. The arbitral
tribunal shall decide in accordance with the rules of
law.
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This
Agreement has been signed in duplicate on 27 April 2007 by:
| ABN AMRO Holding N.V. | The Royal Bank of Scotland Group plc | |||
| /s/ R.W.J. Groenink | /s/ Xxx Xxxxxxxxx | |||
| By: R.W.J. Groenink | By: Xxx Xxxxxxxxx | |||
| Title: Chairman of the Managing Board | Title: Group Finance Director | |||
| /s/ A.J.M.H. de Kleijn | /s/ Xxxxxx XxXxxx | |||
| By: A.J.M.H. de Kleijn | By: Xxxxxx XxXxxx | |||
|
Title:
Deputy Company Secretary
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Title:
Group Secretary
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9
