AGREEMENT ON CONFIDENTIALITY between ABN AMRO HOLDING N.V. and BANCO SANTANDER CENTRAL HISPANO S.A.
AGREEMENT
ON CONFIDENTIALITY
between
ABN
AMRO HOLDING N.V.
and
BANCO
SANTANDER CENTRAL HISPANO S.A.
TABLE
OF CONTENT
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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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Banco
Santander Central Hispano S.A., a public company incorporated
under the laws of Spain having its registered seat at Madrid, and
its
address at Xxxxxxx xx Xxxxxxxxx x/x, Xxxxxx, Xxxxx (hereinafter:
"Santander");
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ABN
AMRO
and Santander are hereinafter also individually referred to as a
"Party" and collectively as the
"Parties".
WHEREAS
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A
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Santander
has, together with Fortis S.A./N.V. and Royal Bank of Scotland Group
plc
(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 Santander 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 Santander 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 Royal Bank of Scotland Group plc 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 Santander 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
Santander, 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 Santander or on the Consortium's or Satander's behalf,
except for information (i) which is in the public domain other than
as a
result of a breach by Santander (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
Santander 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 Santander, 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
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4
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Santander
in connection with the Transaction, in writing, electronically, visually,
orally or otherwise, including any information or data obtained by
ABN
AMRO, in writing, electronically, visually, orally or otherwise,
through
discussions with the management, employees and/or advisers of Santander,
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 Santander
(the "Santander
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
Santander 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
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5
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thereto
or (ii) to each of Fortis S.A./N.V. and Royal Bank of Scotland Group
plc
and their respective Representatives, 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., Royal
Bank
of Scotland Group plc 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., Royal Bank of Scotland Group plc 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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Santander
undertakes towards ABN AMRO with respect to the ABN AMRO Information
and
ABN AMRO undertakes towards Santander with respect to Santander
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
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6
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order
of a court of competent jurisdiction, provided that the disclosing
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 Santander terminate
as
evidenced by written notice of ABN AMRO or
Santander.
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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 Santander 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 Santander terminate as evidenced
by
written notice of ABN AMRO or
Santander.
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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
Santander terminate as evidenced by written notice of
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7
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ABN
AMRO or Santander, none of the Parties and their respective
Representatives 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
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8
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demand
in legal proceedings the rescission (ontbinding) of this
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. |
Banco
Santander Central Hispano S.A.
|
|||
| /s/ Eva Xxxxx Xxxxxx | /s/ Xxxx Xxxxxxx Xxxxxxx | |||
| By: Eva Xxxxx Xxxxxx | By: Xxxx Xxxxxxx Xxxxxxx | |||
| Title: General Counsel | Title: Executive Vice-President | |||
| /s/ Xxxxxxxxx Xxxxxxxxx | ||||
| By: Xxxxxxxxx Xxxxxxxxx | ||||
|
Title:
EVP
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9
