THIS AGREEMENT is made on 20 February 2024

 

BACKGROUND:

 

(A)  In connection with the disposal of restaurant properties by Whitbread under the project name, “Project Kiwi” (the "Proposal"), each Party is willing to disclose to the other Party certain Confidential Information (as defined below) on the terms and subject to the conditions of this Agreement.

 

(B) In this Agreement, the Party disclosing such information is referred to as the “Discloser” and the Party receiving such information is referred to as the “Recipient”.

 

IT IS HEREBY AGREED as follows:

 

1 Interpretation

 

In this Agreement:

 

1.1 “Confidential Information” means, subject as provided in clause 3, all information relating directly or indirectly to the Proposal including, without limitation the existence of the Proposal and the fact that the Parties (or, where relevant, their Connected Persons) are considering, evaluating, discussing and negotiating the Proposal and all information of whatever nature (including without limitation business, financial or technical information and any draft agreements) in whatever form (tangible or intangible, human or machine-readable or otherwise) obtained by the Recipient directly or indirectly from or on behalf of the Discloser and/or any of its Connected Persons (prior to today's date or thereafter) whether relating to the Discloser and/or any of its Group Undertakings or any of the concepts operated by any of them including, without limitation, all and any information relating to products, services, personnel, customers, methods of doing business, know-how, trade secrets, business plans, finances, franchisees, suppliers or distributors, and whether or not such information (if in tangible form) is embodied in any Materials or is marked confidential or proprietary and includes all information directly or indirectly derived, in whole or in part, from such information so obtained including internal analyses, compilations, studies and other documents prepared by or for the Recipient.

 

1.2 “Connected Persons” means, in respect of a Party, its Group Undertakings and its and their respective directors, officers, employees, agents and professional advisors from time to time.

 

1.3 “Data Breach” means any accidental, unlawful or unauthorised destruction, loss, alteration, disclosure of, or access or damage to the Personal Data or any other unauthorised or unlawful processing of the Personal Data.

 

1.4  “Data Protection Law” means any applicable data protection and privacy laws, regulations and other similar instruments in any jurisdiction.

 

1.5 “Group Undertaking” is as defined in s1161 Companies Act 2006 (as may be amended, supplemented, re-enacted or replaced from time to time).

 

1.6 “Materials” means all documents, spreadsheets, presentations, manuals, templates, policies, guidelines, drawings, plans, designs, specifications, recipes, software, samples and any other materials or items of any kind relating to the Discloser and/or any of its Group Undertakings and recording or embodying any of its or their Confidential Information.

 

1.7 “Personal Data” means any personal data (as defined under Data Protection Law in the UK) that is obtained by the Recipient directly or indirectly from or on behalf of the Discloser and/or any of its Connected Persons (prior to today's date or thereafter) and includes all copies of any such personal data prepared by the Recipient or its Connected Persons which contains such personal data.

 

1.8 “Purpose” means the sole and exclusive purpose of considering, evaluating, discussing and negotiating the Proposal.

 

1.9 The obligations expressed to be undertaken by each Party are obligations each Party owes to the other Party and to each of its Group Undertakings.

 

2   Undertakings by the Recipient

 

2.1  In consideration of the Discloser disclosing to the Recipient and permitting the Recipient access to the Discloser’s Confidential Information and Materials the Recipient undertakes:

 

2.1.1 to treat and keep all Confidential Information as secret and confidential and will not, without the prior written consent of the Discloser, disclose or discuss (whether in writing or orally or in any other manner) the Discloser’s Confidential Information to or with any person for any purpose other than to those of its Connected Persons who are required in the course of their duties to receive and consider the same for the Purpose and who are informed by the Recipient of the confidential nature of the information and of the obligations of the Recipient under this Agreement;

 

2.1.2 not to use the Discloser’s Confidential Information or Materials for any purpose whatsoever other than strictly for the Purpose;

 

2.1.3 not to make, or permit or procure to be made, any copies of any of the Discloser’s Confidential Information or Materials except strictly for the Purpose and only to the extent necessary for the Purpose;

 

2.1.4 to protect the Discloser’s Confidential Information by applying confidentiality standards, security measures, procedures and a degree of care at least as stringent as those generally applied by the Recipient in relation to its own confidential information (and, in any case, no less than reasonable measures and a reasonable degree of care);

 

2.1.5 within five days of completion of the Purpose or earlier demand by the Discloser, to return to the Discloser or (at the Discloser's option) destroy all Materials in the possession or control of the Recipient, provided that this shall not apply to Confidential Information which the Recipient or a Connected Person must retain under any applicable law, rule or regulation and in such circumstances, not to take any step actively to access or recover such Confidential Information from any computer, word-processor, telephone or other device containing such Confidential Information or which is otherwise stored or held in electronic, digital or other machine readable form and to continue to hold such Confidential Information subject to the terms of this Agreement;

 

2.1.6 to ensure that all communications with the Discloser in respect of the Purpose (whether oral or in writing) are only conducted throughsuch persons as are notified by the Discloser to the Recipient;

 

2.1.7 without the Discloser’s prior written consent, not to make, permit or procure to be made any announcement about nor disclose to any person of any Confidential Information including, without limitation the fact that any discussions and/or negotiations are or may be taking place between the Parties (or, where relevant, their Connected Persons) or in relation to the Purpose or any details of any such discussions and/or negotiations.

 

2.2 It is hereby acknowledged and agreed that the Recipient shall be responsible for procuring that any and all person to whom it discloses Confidential Information of the Discloser comply with the terms of this Agreement but that the Recipient shall, in any event, be responsible for breaches of this Agreement by any of them.

 

3 Excluded Information

 

3.1 The obligations and restrictions contained in clause 2 shall not apply to information which:

 

3.1.1 is now or subsequently becomes readily available to the public otherwise than (i) by a direct or indirect breach of any undertaking owed to the Discloser and/or any of its Group Undertakings pursuant to this Agreement; or (ii) which the Recipient knows (or ought reasonably to have known having made reasonable enquiry) to have been disclosed in breach of any duty of confidentiality owed to the Recipient or any of its Connected Persons; or

 

3.1.2 the Recipient can prove (by way of written records) was properly and lawfully already in the Recipient's or any of its Connected Person's possession and at its free disposal and was not obtained directly or indirectly from the Discloser and/or any of its Connected Persons; or

 

3.1.3  is subsequently disclosed to the Recipient or any of its Connected Persons free of restrictions on disclosure and use by a third party not acting on behalf of the Discloser or its Connected Persons or directly or indirectly bound to the Discloser or its Connected Persons by obligations of confidentiality or non-use in relation to such information; or

 

3.1.4 is required to be disclosed by law, regulation or any governmental or competent regulatory authority, as long as the Recipient consults (and co-operates with) the Discloser first on the proposed form and timing of the disclosure where practicable and bearing in mind the requirements of the relevant law, regulation, governmental or competent regulatory authority and, where not practicable or permitted to consult with the Discloser prior to such disclosure, the Recipient will, to the extent permitted by law or regulation, inform the Discloser of the circumstances, timing, content and manner of disclosure promptly after such disclosure has been made; or

 

3.1.5 is agreed between both Parties is not Confidential Information.

 

3.2  Where Personal Data is disclosed by the Recipient to its Connected Persons under Clause 2.1.1, the Recipient will ensure that:

 

3.2.1 disclosure of the Personal Data is limited to those persons who need access to the Personal Data in connection with the Purpose and are aware of the Recipients’ duties and their duties under Data Protection Law and under this Agreement with respect to the Personal Data; and

 

3.2.2 access will only be granted to such part or parts of the Personal Data as is strictly necessary in relation to that person’s particular duties in connection with the Purpose.

 

4 No Transfer of Rights

 

4.1 The Recipient acknowledges that it shall not acquire by implication or otherwise any right in or title to or licence in respect of the Discloser’s Confidential Information or Materials.

 

4.2 Nothing in this Agreement gives either Party any title, right or interest whatsoever in or to any intellectual property of the other Party or any of its Group Undertakings, including without limitation any trade marks or service marks, patents, know-how, copyright or design rights and whether registered or unregistered and anywhere in the World.

 

5 Breach

 

5.1 The Recipient acknowledges that any breach by the Recipient of this Agreement is likely to result in extensive loss and damage to the Discloser and/or any of its Group Undertakings and that, as well as damages, an injunction, specific performance and other equitable relief, without proof of special damage, would be appropriate remedies for the Discloser or any relevant Group Undertaking in the event of such breach.

 

5.2 If the Recipient becomes aware of any breach, or threatened breach, of this Agreement the Recipient shall forthwith notify the Discloser in writing thereof, giving all available details, and shall at its own cost and at the Discloser's direction take such steps as the Discloser may decide in order to minimise the loss which the Discloser or any of its Group Undertakings may otherwise suffer as a result of such breach or threatened breach.

 

6 No warranties

 

6.1 The Recipient acknowledges and agrees that:

 

6.1.1 save as may be expressly set out in a subsequent written, mutually-binding agreement in relation to the Proposal (“Definitive Agreement”), no person has nor is held out as having any authority to give any warranty, representation, covenant or undertaking on behalf of the Discloser or its Connected Persons in connection with the Proposal;

 

6.1.2 any information disclosed to the Recipient or its Connected Persons in relation to the Proposal may not be comprehensive and, save as may be expressly set out in any Definitive Agreement, neither Discloser nor any of its Connected Persons has made, is making or will make any representation or warranty (express or implied) and no responsibility or liability has, is or will, in the absence of fraud or fraudulent misrepresentation, be accepted by the Discloser or any of its Connected Persons as to any deficiency or error in the accuracy or completeness of any such information or as to the reasonableness of any assumptions on which any such information is based or for any loss of profit, goodwill or any special or consequential loss (whether direct or indirect) suffered by the Recipient and/or any other person or entity to whom such information is disclosed arising in any manner directly or indirectly out of such information.

 

6.2 Neither Party shall be obliged to accept, review or consider any proposal or offer the other submits in relation to or in connection with the Proposal and either Party may withdraw from discussions in relation to the Proposal at any time without liability to the other Party.

 

6.3 Neither Party shall be under any legal obligation of any kind whatsoever in relation to the Proposal by virtue of this Agreement or any written or oral communication in relation to the Proposal, except for the matters specifically set out in this Agreement and except as may be set out in any Definitive Agreement.

 

7 Data Protection

 

7.1 The Recipient acknowledges that Confidential Information may include Personal Data, the handling or processing or transfer of which may be subject to the requirements of Data Protection Law.

 

7.2 Without limitation to any other term of this Agreement, in relation to Personal Data, the Parties will:

 

7.2.1 comply will all relevant provisions of Data Protection Law to which such Party or such data is subject; and

 

7.2.2 take appropriate technical and organisational measures to: (i) prevent the occurrence of any Data Breach; and (ii) ensure the processing of Personal Data meets the requirements of applicable Data Protection Law.

 

8 Insider dealing and market abuse

 

8.1 The Company[1] acknowledges and agrees that:

 

8.1.1  the Proposal and some or all of the Confidential Information may constitute inside information for the purposes of the Criminal Justice Act 1993 (the CJA) and Regulation (EU) 596/2014 on market abuse, in such form as incorporated into United Kingdom law by the European Union (Withdrawal) Act 2018, as amended (the “UK Market Abuse Regulation”) and, accordingly, by receiving such Confidential Information the Company (and, where applicable, its Connected Persons) may become an “insider”;

 

8.1.2 subject to and in accordance with applicable law, the Company (and, where applicable, its Connected Persons) may not deal in securities that are price-affected securities (as defined in the CJA) in relation to any such inside information, encourage another person to deal in price-affected securities or disclose the information except as permitted by the CJA before the Confidential Information has been made public; and

 

8.1.3 it will not, and agrees to ensure that its Connected Persons will not, engage in any behaviour while in possession of the Confidential Information which would amount to market abuse for the purposes of, or is otherwise prohibited under, the UK Market Abuse Regulation.

 

9 Notices

 

Any notice required to be given for the purposes of this Agreement must be in writing in English, and shall be given by sending the same by courier to, or by delivering the same by hand at, the relevant address shown in this Agreement or such other address as shall have been notified (in accordance with this clause 7) by the party hereto concerned as being its address for the purposes of this clause 7. Any notice to be given to Whitbread must be addressed to “The Company Secretary”.

 

10 Miscellaneous

 

10.1 Subject to the following sentence, the obligations in this Agreement will be continuing and, in particular, they will survive the termination of discussions between the Parties regarding the Purpose. The obligations in this Agreement will expire upon the earlier of (i) 2 years from the date of this Agreement; or (ii) the date upon which the Discloser and/or any of its Group Undertakings enters into a definitive agreement with the Recipient and/or any of its Group Undertakings with respect to the Proposal with confidentiality terms and obligations that supersede those in this Agreement.

 

10.2 Each Party confirms in respect of itself only that it is acting in this matter as principal and not as nominee, agent or broker for or acting in concert (as defined in the City Code on Takeovers and Mergers) with any other person and it will be responsible for its own costs whether incurred by itself or its Connected Persons in considering or pursuing the Proposal (whether or not it proceeds) and in complying with the terms of this Agreement.

 

10.3 No delay or failure by either Party to exercise any right or remedy available to it under or in connection with this Agreement shall prevent the later exercise of any such right or remedy.

 

10.4 To the extent that any Confidential Information is covered or protected by privilege, then the disclosing of such Confidential Information by a party under the terms of this Agreement or otherwise does not constitute a waiver of privilege or any other rights which that Party or its Connected Persons may have in respect of such Confidential Information.

 

10.5 The Company agrees that it shall not appoint third party advisors without the prior approval of Whitbread.

 

10.6 The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law.

 

10.7 Neither Party shall assign this Agreement.

 

10.8 This Agreement does not create any partnership, agency or further relationship between the Parties.

 

10.9 A person who is not a Party shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

10.10 The provisions of this Agreement will be severable in the event that any of the provisions hereof are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions will remain enforceable to the fullest extent permitted by law.

 

10.11 This Agreement and any non-contractual obligations arising out of or in connection with this Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with English law.

 

10.12 The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.

 

10.13 This Agreement may be executed in any number of counterparts, and by each Party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by e-mail attachment or fax shall be an effective mode of delivery.