The purpose of this Insider Trading Policy (the “Policy”) is to promote compliance with applicable general terms and conditions by Gemini Group of Companies and its subsidiaries and all directors, officers and employees thereof, in order to preserve the reputation and integrity of Gemini Group of Companies as well as that of all persons affiliated with it.
The Policy is applicable to all directors, officers and employees of Gemini Group of Companies. The Policy applies to our employees located in all countries where Gemini Group of Companies are based and/or hold offices and/or production facilities and/or tank storage facilities alike.
Questions regarding this policy should be directed to the Company’s Chief Legal Officer.
If a director, officer or any employee of the Company or any agent or advisor of the Company has material, nonpublic information relating to deals, contracts or transactions of the Company, it is the Company’s policy that neither that person nor any Related Person (as defined below) may disclose this material and/or information to third parties outside the Company or engage in any other action to take advantage of, or pass on to others, that information. This Policy also applies to material, nonpublic information relating to any other company with publicly-traded deals, including our customers or suppliers, obtained in the course of employment by or association with Gemini Group of Companies.
To avoid even the appearance of impropriety, additional restrictions on trading apply to directors and members of executive management.
A. Who is an “Insider?”
Any person who possesses material, nonpublic information is considered an insider as to that information. Insiders include Company directors, officers, employees, independent contractors and those persons in a special relationship with the Company, e.g., its auditors, consultants or attorneys. The definition of insider is transaction specific; that is, an individual is an insider with respect to each material, nonpublic item of which he or she is aware.
B. What is “Material” Information?
The materiality of a fact depends upon the circumstances. A fact is considered “material” if there is a substantial likelihood that a reasonable client would consider it important in making a decision to buy, sell or where the fact is likely to have a significant effect on the transaction. Material information can be positive or negative and can relate to virtually any aspect of a company’s business.
Some examples of material information include:
* Unpublished financial results of the client
* News of a pending or proposed company transaction
* Significant financial statements of the client
* News of pending transactions
* Changes in management of the client
* Confidential documents provided by the client
The above list is only illustrative; many other types of information may be considered “material,” depending on the circumstances. The materiality of particular information is subject to reassessment on a regular basis.
C. What is “Nonpublic” Information?
Information is “nonpublic” if it is not available to the general public. In order for information to be considered public, it must be widely disseminated in a manner making it generally available to clients through such media as News Papers, Television – and Radio – and Broadcasting stations, Dow Jones, Reuters Economic Services, The Wall Street Journal, Associated Press, or United Press International. The circulation of rumors, even if accurate and reported in the media, does not constitute effective public dissemination.
D. Who is a “Related Person?”
For purposes of this Policy, a Related Person includes your spouse, minor children and anyone else living in your household; partnerships in which you are a general partner; trusts of which you are a trustee; estates of which you are an executor; and other equivalent legal entities that you control. Although a person’s parent or sibling may not be considered a Related Person (unless living in the same household), a parent or sibling may be a “tippee” for trading laws purposes. See Section below for a discussion on the prohibition on “tipping.”
Non-disclosure of Material Nonpublic Information
Material, nonpublic information must not be disclosed to anyone, except the persons within the Company or third party agents of the Company (such as investment banking advisors or outside legal counsel) whose positions require them to know it, until such information has been publicly released by the Company.
“Tipping” Information to Others
Insiders may be liable for communicating or tipping material nonpublic information to any third party (“tippee”), not limited to just Related Persons. Further, insider trading violations are not limited to trading or tipping by insiders. Persons other than insiders also can be liable for insider trading, including tippees who trade on material, nonpublic information tipped to them and individuals who trade on material, nonpublic information which has been misappropriated.
Tippees inherit an insider’s duties and are liable for trading on material, nonpublic information illegally tipped to them by an insider. Similarly, just as insiders are liable for the insider trading of their tippees, so are tippees who pass the information along to others who trade. In other words, a tippee’s liability for insider trading is no different from that of an insider. Tippees can obtain material, nonpublic information by receiving overt tips from others or through, among other things, conversations at social, business or other gatherings.
Additional Restrictions and Requirements for Directors and “Officers”
In addition to being subject to all of the other limitations in this Policy, directors and members of the Company’s Executive Leadership Team may only trade, deal and work in Company deals and transactions
General Terms Non – Disclosure
WHEREAS, company and client wish to explore a business opportunity of mutual interest and in connection with this business opportunity, Company may disclose to Client certain confidential technical, business or other proprietary information related to the Company, its Trademark(s) or its plans for development of its Trademark(s) which Company desires Client to treat as confidential.
THEREFORE, the parties agree to enter into a confidential relationship with respect to the disclosure by Company to Client of certain information.
For purposes of this section, “Confidential Information” is limited to, any and all information of the following, whether or not reduced to writing: Agreements, information related to product or trademark design, marketing knowledge and information, sales figures, pricing information, marketing plans and business plans, strategies, forecasts, financial information, budgets, projections, procedures and routines.
Confidential Information does not include information that Client can demonstrate: (a) was in Client’s possession prior to its being furnished to Client under the terms of this Agreement, provided the source of that information was not known by Client to be bound by a confidentiality agreement with or other
continual, legal or fiduciary obligation of confidentiality to Company; (b) is now, or hereafter becomes, through no act or failure to act on the part of Client, generally known to the public; (c) is rightfully obtained by Client from a third party, without breach of any obligation to Company; or (d) is independently developed by Client without use of or reference to the Confidential Information.
Client shall not disclose any of the Confidential Information in any manner whatsoever, except as provided in paragraphs 4 and 5 of this Agreement, and shall hold and maintain the Confidential Information in strictest confidence. Client hereby agrees to indemnify Company against any and all reasonable losses, damages, claims, expenses, and attorney’s fees incurred or suffered by Company as a result of a breach of this Agreement by Client or its Representatives.
Client may disclose Company’s Confidential Information to his or her representatives (“Representatives”) or a nominee with a possible interest in making an investment in Company (“Potential Investors”) and each of whom thus has a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out an investment transaction with Company and only if such persons are advised of the confidential nature of such Confidential Information and the terms of this Agreement and actually sign and agree to be bound by this Agreement or by a legally enforceable code of professional responsibility to protect the confidentially of such Confidential Information. In no event will Confidential Information, or the disclosure of negotiations between Company and Client; be disclosed to any other persons or entities.
Client may disclose Company’s Confidential Information if and to the extent that such disclosure is required by court order, provided that Client provides Company a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
Client and those persons listed in Paragraphs above shall use the Confidential Information solely for the purpose of evaluating a possible investment transaction or business relationship with Company and shall not in any way use the Confidential Information to the detriment of Company. Nothing in this Agreement shall be construed as granting any rights to Client or to those persons listed in Paragraph 4 above, by license or otherwise, to any of Company’s Confidential Information.
Acquisition of Information
Neither Client nor any person in Paragraph 4 above shall initiate or maintain contact, except for those contacts made in the ordinary course of business, with any director, manager, officer, employee or agent of Company regarding its business, operations, prospects, or finances, except with the written approval of Company.
Non-Solicitation of Company Employees
Client and those persons listed in Paragraphs above shall not, without the prior written approval of Company, hire or enter into a contract with any employee, agent, consultant or representative of Company to provide services to Client or, directly or indirectly, include or attempt to induce or otherwise counsel, discuss, advise or encourage any employee, of the Company to leave or otherwise terminate such person’s relationship with Company for a period of twelve (12) months following the date hereof.
Non-Solicitation of Customers
Client and those persons listed in Paragraphs above shall not, without the prior written approval of Company, directly or indirectly, whether or not for compensation, for the purpose of engaging in competition with Company, call on or solicit any person or entity who may be a customer of Company for a period of twelve (12) months after the date hereof.
Confidentiality of Negotiations
Client and those persons listed in Paragraphs above shall not make any statement, public announcement, release to any trade publication or the press, or inform any third party of the discussions or negotiations in connection with the possible investment transaction, business relationship, any other activity, or the exchange of Confidential Information without first obtaining the written consent and approval of Company. However, Client may make such a disclosure if Client has received the written opinion of outside counsel that such disclosure must be made in order to avoid a violation of law and a copy of such opinion has been provided to Company.
Client shall be responsible for any breach of this Agreement and shall, at his or her sole expense, take all reasonable measures to restrain any unauthorized person from prohibited disclosure or use of the Confidential Information.
Return of Documents
If Recipient or those persons listed in Paragraphs above do not proceed with the possible investment transaction or business relationship with Company, Client or those persons listed in Paragraphs above shall notify Company of that decision and shall, at that time or at any time upon the request of Company for any reason, return to Company any and all records, notes, and other written, printed or other tangible materials in its possession pertaining to the Confidential Information immediately on the written request of Company. The returning of materials shall not relieve Client or those persons listed in Paragraphs above from compliance with other terms and conditions of this Agreement.
No Additional Agreements
Neither the holding of discussions nor the exchange of material or information shall be construed as an obligation of Company to enter into any other agreement with Client or those persons listed in Paragraphs above or prohibit Company from providing the same or similar information to other parties and entering into agreements with other parties. Company reserves the right, in its sole discretion, to reject any and all proposals made by Client or those persons listed in Paragraphs above with regard to a transaction or relationship between Client or those persons listed in Paragraphs above and Company and to terminate discussions and negotiations with Client at any time. Additional agreements of the parties, if any, shall be in writing signed by Company and the appropriate parties thereto.
Client and those persons listed in Paragraphs above understand and acknowledge that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause Company irreparable harm, the amount of which may be difficult to ascertain, and therefore agreed that Company shall have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as Company shall deem appropriate. Such right of Company is to be in addition to the remedies otherwise available to Company at law or in equity. The responsible Law court will be the court in Amsterdam, the Netherlands.
This Agreement shall continue in full force and effect for a period of three years from the date first set forth above.
Successors and Assigns.
This Agreement and each party’s obligations hereunder shall be binding on the representatives, assigns, and successors of such party and shall inure to the benefit of the assigns and successors of such party; provided, however, that the rights and obligations of Client hereunder are not assignable except as specifically described in Paragraphs above.
This Agreement expresses the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous proposals, agreements, representations and understandings, whether written or oral, with respect to the subject matter. This Agreement does not, however, limit any rights that Company may have under trade secret, copyright, patent or other laws that may be available to Company. This Agreement may not be amended or modified except in writing signed by each of the parties to the Agreement. This Agreement shall be construed as to its fair meaning and not strictly for or against either party. The headings hereof are descriptive only and not to be construed in interpreting the provisions hereof.
All in this non-disclosure section mentioned rights and obligations of every paragraph will apply mutuality for the Company and the Client in the same way. In case if only one participant, the Company or the Client, will be mentioned in any paragraph the right or obligation will apply to the other participant in the same way.