EXHIBIT 3
MUTUAL CONFIDENTIALITY AGREEMENT
This mutual confidentiality agreement ("Agreement") is between Essex
Group, Inc., with offices in Ft. Xxxxx, Indiana, and Superior TeleCom Inc.,
with offices at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000.
WHEREAS, the parties desire to share certain information regarding their
operations to determine the synergies that may exist ("Evaluation"); and
WHEREAS, in connection with any discussions or negotiations between the parties,
either party ("Owner") may disclose to the other party ("Recipient") certain
information, as defined below, either orally, in writing, or through tangible
goods:
NOW, THEREFORE, the parties agree:
1. "INFORMATION" shall mean any and all information that Owner or any of
its representatives or affiliates furnish or have previously furnished to
Recipient whether furnished by any means including orally or in writing or
gathered by inspection and regardless of whether the same is specifically marked
or designated as "confidential" or "proprietary," together with any and all
notes, memoranda, analyses, compilations, studies or other documents prepared by
Recipient, its directors, officers, employees, agents, or representatives
(including attorneys, accountants, and financial advisors) (the
"Representatives") which contain or otherwise reflect Recipient's review of the
Information, together with any an all copies, extracts, or other reproductions
of any of the same; provided, however, that the term "Information" does not
include information that:
(a) is or becomes publicly known through no wrongful act of Recipient
or its Representatives; or
(b) was available in writing to Recipient on a non-confidential basis
prior to its disclosure to Recipient by Owner; or
(c) is compelled to be disclosed by court process without a
protective order; provided that Recipient immediately notify Owner of any such
request to produce Confidential Information, consult with Owner, and assist
Owner in seeking a protective order.
2. The Recipient acknowledges the proprietary nature of the Information
and agrees to use appropriate security measures to safeguard Information
disclosed by the Owner, including the obligation (i) to use at least the same
measures to protect the Information of the Owner as Recipient uses to protect
its own Information against misuse, (ii) to use the Information only for the
purposes for which it was disclosed (i.e., only in connection with the business
negotiations and any resulting business matters between the parties), (iii) to
not disclose Information to third parties, except its Representatives who need
to know such Information to third parties, except its Representatives who need
to know such Information in order to assist Recipient in its
1.
Evaluation, who are informed by Recipient of the confidential nature of the
Information and who agree in writing to be bound by this Confidentiality
Agreement, (iv) upon request to return Information supplied by Owner and to
destroy and certify in writing to said destruction all notes, memoranda,
analyses, compilation studies or other documents containing Information,
which were prepared by Recipient or its Representatives, and (v) to disclose
Information in order to assist the parties in connection with their
Evaluation. Recipient shall be responsible for any breach of this
Confidentiality Agreement by its Representatives.
3. The fact that the Information was disclosed and the fact that
discussions are taking place relative to the Evaluation, including the status
thereof, will not be disclosed to any person or entity without the written
consent of the other or except as required by applicable law, regulation or
NYSE rule.
4. Without the prior written consent of the other, neither party nor any
of its Representatives will, for a period of two year(s) after the date hereof,
directly solicit for hire any employee of the other.
5. No license or conveyance of any rights under any discoveries,
inventions, patents, trade secrets, proprietary information, copyrights, trade
names or trademarks, or applications therefore, or any other form of
intellectual property is granted or implied with respect to any information
disclosed pursuant to the terms of this Confidentiality Agreement.
6. Neither party makes any representation or warranty (whether express or
implied) with respect to Information supplied under this Agreement, about the
accuracy or completeness of the Information and neither party nor any of its
affiliates, directors, officers, employees, representatives, or agents will have
any liability to the other party or any other person or entity resulting from
the Information or any use thereof.
7. Recipient agrees that money damages will not be a sufficient remedy
for any breach of this Confidentiality Agreement by it or its Representatives
and that Owner is entitled to specified performance and injunctive relief as
remedies for any such breach. Such remedies shall not be deemed to be the
exclusive remedies for a breach of this Confidentiality Agreement but shall be
in addition to all other remedies available at law or equity. Owner shall be
entitled to recover costs and attorney's fees in any action to enforce the terms
of this Confidentiality Agreement.
8. This Confidentiality Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana. This Agreement cannot be
modified except in writing signed by both parties.
ESSEX GROUP, INC. SUPERIOR TELECOM INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx, Xx.
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Its: CEO Its: Sr. V.P.
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2.
[Letterhead of Essex Group, Inc.]
September 29, 1998
XX. XXXXXX X. XXXXXX
Chairman, President and
Chief Executive Officer
SUPERIOR TELECOM INC.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Xxxxx:
On April 24, 1998, SUPERIOR TELECOM and ESSEX entered into a MUTUAL
CONFIDENTIALITY AGREEMENT. That agreement has never been terminated by either
party. It is our understanding that the Agreement remains in effect and will
continue to apply to our exchanges of information. Further, for purposes of the
two-year no solicitation of employees clause in Paragraph 4, I propose that we
start the clock over as of today's date. In other words, both parties agree not
to solicit each other's employees for a period of two years commencing
September 29, 1998.
Please indicate your acceptance and acknowledgement of the above by signing
below and returning by fax a copy of your signed acknowledgement.
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
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ACCEPTED AND ACKNOWLEDGED:
/S/ XXXXXX X. XXXXXX
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XXXXXX X. XXXXXX
9/29/98
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DATE
