EXHIBIT(d)(2)
Confidentiality
and
Non-Disclosure Agreement
This Agreement is signed on August 30, 2001 by and between Abengoa, S.A., a
corporation duly organised and existing under the laws of the Kingdom of Spain
whose registered office is at Xx. Xxxxxxx, x(xxxxxxx)0, Xxxxxxx, Xxxxx,
together with its officers, directors, employees, affiliates and
representatives (hereinafter referred as to "Abengoa"), represented by Xxxxxxx
Xxxxxxx de la Xxxxxx Xxxxxx, and High Plains Corporation, a corporation duly
organised and existing under the laws of Kansas (USA), with registered office
at 000 X. Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx, XXX, together with its officers,
directors, employees, affiliates and representatives (hereinafter referred to
as "High Plains"), represented by Xxxx X. Xxxxx.
Hereinafter together referred as to the Parties,
Recitals
Whereas High Plains is a Company duly organised and existing in USA, which
main activities are production and marketing of ethanol and related
products.
Whereas Abengoa is a technological company that provides solutions for the
Sustainable Development, the Information Society and the Creation
of Infrastructures,
And
Whereas The parties are interested in pursuing a potential agreement
between Abengoa and High Plains regarding either the formation of a
Joint Venture, or the creation of an investment, financing or
purchase or transfer of technology between the parties.
In consideration of the foregoing, it has been agreed as follows:
1.- The purpose of this Confidentiality and Non-Disclosure Agreement is to
define the conditions under which any confidential information
(hereinafter referred as to "Confidential Information") will have to be
disclosed between the Parties in the view of starting the above mentioned
analysis process.
2.- "Confidential Information" means, but is not limited to, plans,
calculations, concepts, designs sheets, design date, system design,
computer programs, algorithms, software, firmware, drawings,
specifications, processes, instructions, research, test procedures and
results equipment, manuals, identity and description of computerised
records, customer lists, supplier identity, marketing and sales plans,
financial information, costs, pricing information and all other concepts,
ideas and/or documents, involving or reasonably related to the business
or prospective business of Abengoa and High Plains, and/or any
information related to the know-how of Abengoa and High Plains received
by the other Party, written (especially when identified and marked as
property of Abengoa or High Plains) or orally, provided that promptly
following the disclosure of such oral information, Abengoa and High
Plains have confirmed to the other Party in writing the confidential
nature of the information.
Such Information will not be treated as confidential if, at the time of
disclosure by Abengoa or High Plains (the Disclosing Party), it can be
proved or shown that the Information:
i) had been generally available within the public domain, which
includes in the whole Agreement the professionals operating in the
business of both Parties, at the time they were disclosed or have
fallen within the public domain without any breach of this
Agreement; or
ii) had been in possession of the other Party at the very time of
receipt from the Disclosing Party; or
iii) had been developed independently by the other Party before the
very time of receipt from the Disclosing Party; or
iv) had been independently received by the other Party from a third
party with no obligation to the Disclosing Party with respect
thereto; or
v) is approved or released by prior written authorisation of the
Disclosing Party.
vi) is legally required to be disclosed by judicial or other
governmental action provided, however, that prompt notice of such
judicial or other governmental action shall have been given to the
Disclosing Party and it shall be afforded the opportunity
(consistent with the legal obligations of both Parties) to exhaust
all reasonable legal remedies to maintain the proprietary
information in confidence.
3.- "Recipient" means the party to whom any kind of Confidential Information,
as stated hereabove, has been disclosed.
4.- Both Parties will keep strictly confidential and secret, and shall not
disclose to any third party without the prior written authorisation of
the other Party, any of the Confidential Information it has received or
will received from any of the Parties and protect the Confidential
Information against use for any purpose other than stated herein, using
the same degree of care, but no less than a reasonable degree of care, as
the recipient uses the protect its own Confidential Information of a like
nature.
Abengoa and High Plains will each keep the ownership of all their own
Confidential Information, whether copyrightable or not, whether
patentable or not, made or conceived, including any of their
improvements or enhancements such as enumerated hereabove as
Confidential Information under this Agreement, resulting from the use,
whatsoever, of Confidential Information. Neither of the Parties will not
acquire any intellectual property rights under the matter of this
Agreement.
Both Parties may disclose the Confidential Information received from any
of them only to the staff, Board members and temporary employees, agents
and consultants directly involved in the promotion and development of
the present analysis process.
5.- Each Party appoints its respective representative herebelow identified to
receive all Confidential Information from the other Party under this
Agreement
For High Plains: For Abengoa:
Xx. Xxxx X. Xxxxx Xx. Xxxxxxx Xxxxxxx de la Xxxxxx
Xxxxxx
Xx. Xxxxxxxxxxx X. Xxxxxxxx
and/or Xx. Xxxxxxx X. Xxxxxxx
In case of substitution of the person indicated before this should be
immediately communicated in writing to the other party.
6.- This Agreement shall not constitute, create, give effect to or otherwise
imply a joint venture, pooling arrangement, partnership or formal
business organisation of any kind, nor shall it constitute, create, give
effect to, or other imply an obligation or commitment on the part of
either Party to submit a proposal to or perform a contract with the other
Party.
7.- None of the Parties or their agents or advisors make any warranty,
guarantee or representation, either express or implied, with respect to
any of the proprietary information disclosed hereunder.
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Neither of the Parties, nor their agents or advisors, will be liable for
damages, of whatever kind, suffered by the other party as a result of
any reliance on or use of the information provided hereunder as
contemplated and authorised by this agreement.
8.- The provisions of this Agreement shall be enforceable within the entire
world notwithstanding the existence of any claim or cause of action of
one Party against the other whether predicated on this Agreement or
otherwise.
Should any of the provisions or any portion of this Agreement be void by
virtue of law or declared unenforceable by any jurisdiction decision,
the other provisions shall remain in force between the Parties.
This agreement represents, at the time of its signature, the entire
understanding of the Parties with respect to the subject matter of this
Agreement, and may be amended only with the written consent of both
Parties.
9.- In case the analysis process is started and subsequently finished for any
reasons, both Parties commit to send back to the other one all
Confidential Information received within one month from the date of
receipt of the notice.
10.- Each Party hereby is obliged to keep strictly confidential and secret the
existence of this Agreement and the analysis process if any, and shall
not disclose to any third party without the prior written authorisation
of the other Party.
11.- This Confidentiality and Non-Disclosure Agreement shall remain in force
for so long as any of the information exchanged remains confidential or
for a period of ten (10) years from the date hereafter or after the last
exchanged confidential information between the Parties, whichever time
period expires first.
12.- Failure in complying with any of the foregoing provisions of this
Agreement by one Party, shall constitute a breach of the Contract which
give right to the other Party to be held harmless and to obtain relief
against that breach of the foregoing undertakings in addition to any
other legal or equitable remedies which may be available.
13.- This Agreement shall be governed by the laws of Kansas, regardless of
rules regarding conflicts of laws.
14.- The Recipient acknowledges that it is aware that both, the United States
securities laws and the Spanish securities laws, prohibit any person who
has received from an issuer material, non-public information from
purchasing or selling securities of such issuer or from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell
such securities. Regardless of whether any securities law or regulation
would prohibit such a transaction without disclosure, the Recipient
agrees that unless and until there is public disclosure of this
contemplated transaction, or for a period of one year from the
termination of negotiations between the parties, whichever occurs later,
the Recipient, and its officers, directors, employees, affiliates and
representatives will not purchase or offer to purchase any securities or
material assets of the other Party, propose, or make any public
announcement with respect to, any merger or other combination with the
other Party or participate in any solicitation of proxies from
stockholders of the other Party, except pursuant to a transaction
approved by the Board of Directors of both Parties. The Parties also
acknowledge that they are aware of the provisions of the Xxxxxxx Xxxxxxx
and Securities Fraud Enforcement Act of 1988 and will take precautions
adequate to protect the interests of both Parties in that regard.
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Without the written consent of the Disclosing Party, the Recipient and
any individuals to whom the Recipient has provided Information shall not
for a period of two years from the date hereof directly or indirectly
solicit for employment any employees of the Disclosing Party or any of
its affiliates who have been introduced to the Recipient through this
process. However, the Recipient shall not be precluded from advertising
for employment in publications available to the general public, provided
such advertisements are not specifically targeted at employees of the
Disclosing Party; and the Recipient shall not be precluded from hiring
any the Disclosing Party's employee who contacts the Recipient on his or
her own initiative.
The parties agree that any breach of this Agreement may cause immediate
and irreparable harm, and that monetary damages may be impossible to
ascertain. The Parties therefore agree that upon any breach or
threatened breach hereof, the non-breaching party may seek from any
Court of competent jurisdiction an appropriate temporary restraint
order, injunction, or other equitable relief.
Notwithstanding with the above, the Parties will not be liable for any
consequential or indirect damages coming from the breach of any of the
clauses here-above stated in this Agreement.
In proof whereof, the Parties have executed this Agreement in the date and
place indicated below.
By and between High Plains By and between Abengoa
Signed
Signed
/s/ Xxxx X. Xxxxx /s/ Xxxxxxx Xxxxxxx
Name: _______________________________ Name: _______________________________
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