28 April 2006 DATA ROOM RULES AND PROCEDURES

Transcription

1 28 April 2006 DATA ROOM RULES AND PROCEDURES

2 VIRTUAL DATA ROOM RULES INTERPRETATION Words and expressions used in this Document shall have the meanings set out in Appendix A. THE RULES 1. GENERAL 1.1 The Rules regulate the access and use of the Virtual Data Room by all Authorised Users. 1.2 The Rules will be made available to all Authorised Users in the Virtual Data Room. 1.3 Each Bidder must ensure that the Rules are brought to the attention of its Authorised User(s). 1.4 Each time an Authorised User accesses and/or uses the Virtual Data Room, he must: (a) (b) (c) (d) fully comply with the Rules; take all reasonable steps to ensure that no Confidential Information is visible to, or capable of being seen or read by, any Unauthorised Person; ensure that he fully exits the Virtual Data Room when he has finished accessing the Confidential Information; and comply immediately and fully with any instruction from, and submit to any reasonable security procedures required by, the Commission, the Commission Representative and/or the Service Provider. 2. CONFIDENTIALITY AND STATUS OF CONFIDENTIAL INFORMATION 2.1 The disclosure of any Confidential Information in the Virtual Data Room is subject to the Bid Process Agreement. 2.2 The Commission reserves, for itself and its Connected Persons, the right to withhold any Confidential Information from the Virtual Data Room at any time during the Data Room Process, for confidentiality, commercial sensitivity or any other reason, at the Commission s sole discretion. 2.3 None of the Beneficiaries or any third parties who may supply Confidential Information accept any responsibility for, or make any representation or warranty (express or implied) as to the accuracy, reasonableness or completeness of the Confidential Information and any oral communication made available to a Bidder or an Authorised User. 2.4 Neither the Commission nor any of its Connected Persons gives any undertaking to provide a Bidder or an Authorised User with access to any additional information. 2

3 2.5 Nothing in this Document will exclude any liability for, or remedy in respect of, fraudulent misrepresentation. 3. ORGANISATION OF THE VIRTUAL DATA ROOM AND THE INDEX 3.1 The Index will be made available to all Authorised Users in the Virtual Data Room. 4. UPDATING THE VIRTUAL DATA ROOM AND THE INDEX 4.1 The Commission reserves, for itself and its Connected Persons, the right to add Confidential Information to the Virtual Data Room, to amend or remove any Confidential Information disclosed in the Virtual Data Room and to amend the Index (in whole or in part) at any time at its or their sole discretion. 4.2 Notwithstanding the above, it is the responsibility of each Authorised User to check regularly whether any Confidential Information has been added to, amended or removed from the Virtual Data Room and whether the Index has been amended. 4.3 From time to time, at the Commission s sole discretion, the Service Provider, the Commission or its Connected Persons may include a revised version of the Index in the Virtual Data Room. 5. SUPPLEMENTARY INFORMATION 5.1 Any Supplementary Confidential Information will be included from time to time in that section of the Virtual Data Room and the Index in which it would have been included had it been made available when the Virtual Data Room and the Index had first been set up. 5.2 It is the responsibility of each Bidder and/or its or their Authorised User to check regularly whether any Supplementary Confidential Information has been disclosed in the Virtual Data Room. 6. PRINTING AND/OR DOWNLOADING CONFIDENTIAL INFORMATION Each Authorised User may only print and/or download Confidential Information in respect of which the Commission or the Commission Representative, as appropriate, has given its prior consent, unless such Confidential Information has already been made available as printable and/or downloadable. If the Authorised User wishes to print and/or download Confidential Information which the Commission or the Commission Representative has not given its consent, it will be unable to do so unless he has first requested by to the Commission Representative that he be able to do so. The Commission Representative may grant such consent in its absolute discretion. The Commission Representative s address shall be available from the Virtual Data Room on the index page. 7. WAIVER AND VARIATION 7.1 No omission to exercise or delay in exercising, on the part of the Commission, the Commission Representative, a Connected Person or the Service Provider, any right, power or remedy provided by law or by the Rules shall constitute a waiver or impairment of such right, power or remedy. No single or partial exercise of any such right, power or remedy shall preclude or impair any further exercise thereof or the exercise of any other right, power or remedy provided by law or by the Rules. 3

4 7.2 Any waiver by the Commission, the Commission Representative, a Connected Person or the Service Provider of any right, power or remedy under the Rules must be made in writing and may be subject to any condition that the Commission in its sole discretion thinks fit. Unless otherwise expressly stated, any waiver shall be effective only in respect of the particular matter and purpose for which it is given. 7.3 The Commission or the Commission Representative may amend the Rules at any time and will notify the Authorised Users as soon as reasonably practicable of any such amendments. 8. REMEDIES Without prejudice to any rights or remedies which the Commission may have, each Authorised User acknowledges and agrees that damages alone may not be an adequate remedy for any breach by him of the Rules and that accordingly, the remedies available to the Commission will include injunction, specific performance and any other equitable relief, or any combination thereof, for any threatened or actual breach of the Rules, and no proof of special damages will be necessary to enforce the Rules. 9. NOTICES In the event that the Commission or the Commission Representative wishes to or is required to give notice of any event to or to serve any document on any Authorised User, such notice or document shall be deemed to be validly served at the time such notice or document is sent by to the address provided by such Authorised User. THE PROCEDURES 10. GENERAL 10.1 The Procedures set out the manner in which the Authorised Users may gain access to and use the Virtual Data Room The Commission or the Commission Representative may amend the Procedures at any time and will notify the Authorised Users as soon as reasonably practicable of any such amendments. 11. REPRESENTATIVES 11.1 The Commission Representative is Sheila Van Lear Each Bidder must appoint a Bidder Representative by completing the form attached at Appendix B and submitting it to the Commission Representative. 12. AUTHORISATION PROCESS 12.1 The Bidder s Representative will submit a list of Potential Users to the Commission Representative. The Bidder s Representative shall procure that each Potential User shall supply a signed data room visitor s declaration in the form scheduled to the Bid Process Agreement at Schedule 3 to the Commission when the Bidder s Representative submits the list of Potential Users to the Commission. 4

5 12.2 On receipt of the list of Potential Users from the Bidder s Representative in accordance with paragraph 12.1, the Commission Representative shall then send an invitation to each Potential User. The invitation will request that the Potential User provide various information to the Commission Representative including a challenge phrase and answer Upon receipt of an invitation in accordance with paragraph 12.2, a Potential User shall reply to the invitation by providing the information requested by the invitation . Once the Potential User has completed his reply to the invitation , he shall send it to the Commission Representative The Commission Representative will review the information supplied by the Potential User in the invitation . The Commission Representative may, in its absolute discretion, request further information from the Potential User and/or shall either approve or deny the Potential User access to the Virtual Data Room If a Potential User is approved by the Commission Representative to have access to the Virtual Data Room then he will receive a welcome which will require the Potential User to create a password of his own choosing and will contain a link to the Service Provider user guide which will provide guidance on navigating around the Virtual Data Room and such matters as viewing, printing and downloading documents. The Potential User will then be able to access the Virtual Data Room For the avoidance of doubt, the Potential User, once approved by the Commission Representative in accordance with paragraph 12.4, shall become an Authorised User Each Authorised User is responsible for ensuring the confidentiality of his password Only Potential Users who have received welcome s will qualify as Authorised Users It is intended that Authorised Users will be able to access the Virtual Data Room 24 hours a day, seven days a week from 9.00 a.m. (BST) on 15 May 2006 until at least 5.00 p.m. (BST) on 30 November 2006, subject to the Service Provider temporarily suspending its service for technical or maintenance reasons or to update the Virtual Data Room. The currently weekly scheduled downtime is 12:00 midnight Saturday evening to 12:00 noon on CST on Sunday morning If any Authorised User experiences technical difficulties in accessing or using the Virtual Data Room or the Confidential Information or forgets his initial or chosen password, he should contact the Service Provider s 24-hour technical support on: Any person who contacts the Service Provider s technical support will be asked to state the project name, their user name and their challenge password before receiving any technical assistance. 13. REFUSAL OR WITHDRAWAL OF ACCESS The Commission reserves, for itself, the Commission Representative and the Service Provider, the right to refuse access, or to withdraw consent, to access the Virtual Data Room (or any part thereof) or any Confidential Information from any Authorised User at any time 5

6 and without providing prior notice or any reason for such refusal or withdrawal, at the Commission s sole discretion. 14. TERMINATION OF ACCESS DUE TO INACTIVITY For security reasons, if an Authorised User is inactive within the Virtual Data Room for a period of 30 minutes, his Virtual Data Room session will automatically cease and he will be obliged to repeat the log in process. 15. UNAUTHORISED ACCESS OF CONFIDENTIAL INFORMATION 15.1 In the event that an Authorised User gains access (howsoever gained) to any section of the Virtual Data Room and/or Confidential Information to which he knows or suspects, or should reasonably have known or suspected, that he should not have gained access, he must immediately exit such section and inform the Commission Representative of such unauthorised access. Any copies of any such Confidential Information shall be immediately deleted, destroyed, or returned to the Commission Representative The Authorised User shall not divulge the fact of the unauthorised access nor the Confidential Information gained thereby to any other person, save where required to do so by an order of a court or other competent body, in which case he shall inform the Commission Representative accordingly. 16. DISPUTED ACCESS OR ACTIVITY In the event of a dispute as to whether any Unauthorised Person or Authorised User has accessed or used the Virtual Data Room and/or any Confidential Information or performed any other activity within the Virtual Data Room, the Virtual Data Room records (including, without limitation, any real-time reports produced or capable of being produced) maintained by or available to the Service Provider shall be deemed to provide conclusive evidence. 17. DUE DILIGENCE REQUESTS 17.1 A Bidder may ask questions about the Confidential Information or request additional information and/or documents by submitting the questions or requests in accordance with the process outlined in the Virtual Data Room The Commission Representative will deal with any such questions and/or information requests at its sole discretion By accessing the Virtual Data Room, each Authorised User is deemed to have represented to the Commission that he is fully aware of the content of this Document, including, without limitation, the Rules and the Procedures, and that he agrees that he is bound by and shall fully comply with its terms. Confirmed and Agreed. For and on behalf of [name of Bidder] Date:. 6

7 APPENDIX A INTERPRETATION 1.1 In this Document, the following words and expressions shall have the following meanings: Authorised User means any person who is duly authorised to use the Virtual Data Room in accordance with the Rules, the Procedures and the Bid Process Agreement; Beneficiaries has the meaning given to it in the Bid Process Agreement; Bid has the meaning given to it in the Bid Process Agreement; Bidder has the meaning given to it in the Bid Process Agreement and Bidders shall be construed accordingly; Bidder s Representative means the Bidder s designated representative in relation to the Data Room Process; Bid Process Agreement means the agreement entered into between the Commission and the Bidder; Commission means the National Lottery Commission, whose principal place of business is 101 Wigmore Street, London, W1U 1QU; Commission Representative means the Commission s designated representative in relation to the Data Room Process whose name is set out at paragraph 11.1; Confidential Information has the meaning given to it in the Bid Process Agreement; Connected Persons means, in each case, to the extent that they are involved in the Bid: (a) the Commission, each of the Commission s other Group Undertakings and each of the Commission s and their respective directors, officers, partners, shareholders, affiliates, employees, representatives, advisers (including, without limitation, attorneys, accountants, consultants and financial and other advisers) or agents; and (b) directors, officers, partners, shareholders, affiliates and employees of any such representative, adviser or agent or of their respective Group Undertakings; Data Room Process means the procedure adopted by the Commission (as may be varied by the Commission from time to time in its absolute discretion) for the selection of a licensee for the New Licence; Group Undertaking has the meaning given to it in section 259 of the Companies Act 1985; Index means the index of the Confidential Information of the Virtual Data Room; New Licence has the meaning given to it in the Bid Process Agreement; 7

8 Potential User means any person whose address and name of the company associated with that person have been submitted by a Bidder Representative to a Commission Representative to request access to the Virtual Data Room; Procedures means the Virtual Data Room procedures set out in paragraphs 10 to 17 (both paragraph references being inclusive) and the appendices thereto; Rules means the Virtual Data Room rules set out in paragraphs 1 to 9 (both paragraph references being inclusive) and the appendices thereto; Service Provider means Merrill Corporation, the information management services company hired by the Commission to create and operate the Virtual Data Room; Supplementary Confidential Information means any Confidential Information which only becomes available after the opening of the Virtual Data Room; Terms and Conditions means the terms and conditions on the Service Provider s website governing the disclosure of the Confidential Information in the Virtual Data Room and that each Authorised User must accept in order to access the Virtual Data Room; Unauthorised Person means any person who is not duly authorised to use the Virtual Data Room in accordance with the Rules, the Procedures and the Bid Process Agreement; Virtual Data Room has the meaning given to it in the Bid Process Agreement. 1.2 words denoting the singular shall include the plural and vice versa; 1.3 words denoting one gender shall include each gender and all genders; 1.4 references to persons shall be deemed to include references to natural persons, firms, partnerships, bodies corporate, associations, organisations and trusts (in each case whether or not having separate legal personality), but references to individuals shall be deemed to be references to natural persons only; 1.5 references to appendices are references to appendices hereto and the appendices shall be deemed to be incorporated herein; 1.6 the headings set out herein are for ease of reference only and shall not affect the interpretation or construction of the Rules or the Procedures; 1.7 references herein to statutory provisions shall (where the context so admits and unless otherwise expressly provided) be construed as references to those provisions as amended, consolidated, extended or re-enacted from time to time (whether before or after the date of this document); and 1.8 the words including or include shall be deemed to read including, without limitation, or include, without limitation,, as appropriate. 8

9 APPENDIX B BIDDER S REPRESENTATIVE Bidder: Bidder s Representative: Name: Title: Company: Address: Tel: Fax: 9