EXHIBIT 9
WIND POINT PARTNERS
Xxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
CONFIDENTIALITY AGREEMENT
September 1, 1999
PERSONAL AND CONFIDENTIAL
Dear Sirs:
In connection with our interest in a possible transaction involving us and
Bolle Inc. (the "Company"), the Company is furnishing us with certain
information which is either non-public, confidential or proprietary in nature.
All information furnished to us, our directors, officers, employees, agents or
representatives, including without limitation attorneys, accountants,
consultants and financial advisors (collectively, "representatives"), by the
Company, or any of their respective representatives, and all analyses,
compilations, data, studies or other documents prepared by us or our
representatives containing or based in whole or in part on any such furnished
information or reflecting our review of, or interest in, the Company is
hereinafter referred to as the "Information." In consideration of our being
furnished with the Information, we agree that:
1. The Information will be kept confidential. and will not, without the
prior written consent of the Company, be disclosed by us or our representatives
to any other person, in any manner whatsoever, in whole or in part, and will not
be used by us or our representatives directly or indirectly for any purpose
other than evaluating the transaction referred to above. Moreover, we agree to
transmit the Information only to those representatives who need to know the
Information for the purpose of evaluating the transaction referred to above, who
are informed by us of the confidential nature of the Information and who agree
to be bound by the terms of this Agreement. We agree to notify the Company prior
to the delivery or disclosure of any Information to our representatives, as to
the identity of such representatives. We will be responsible for any breach of
this Agreement by our representatives,
2. Without the prior written consent of the Company, except to the extent
provided by this Agreement, we and our representatives will not disclose to any
other person the fact that the Information has been made available, that
discussions or negotiations are taking place concerning a possible transaction
involving us and the Company, or any of the terms, conditions or other facts
with respect to any such possible transaction, including the status thereof,
except as required by law and then only with proper written notice as soon as
possible to the Company. The term "person" as used in this letter shall be
broadly interpreted to include without limitation any corporation, company,
group, partnership or individual.
3. We shall keep a record of each location of the Information. The
Information and all copies thereof will be destroyed or returned immediately
without retaining any copies thereof, if we do not within a reasonable time
proceed with a transaction involving the Company, or upon request. However, our
attorneys shall be allowed to retain a copy of the Information until the
expiration of this Agreement.
4. This Agreement shalt be inoperative as to such portions of the
Information which (i) are or become generally available to the public other than
as a result of a disclosure by us or our representatives; (ii) become available
to us on a non-confidential basis from a source other than the Company or one of
their representatives which has represented to us (and which we have no reason
to disbelieve after due inquiry) is entitled to disclose it; or (iii) were known
to us on a non-confidential basis prior to their disclosure to us by the Company
or one of their representatives.
5. For a period of three years from the date of this Agreement, we and
our affiliates (including any person or entity directly or indirectly, through
one or more intermediaries, controlling us or controlled by or under common
control with us) will not (and we and they will not assist or encourage others
to), directly or indirectly, (i) purchase or agree or offer to purchase any
securities or assets of the Company or any rights or options to acquire the same
(including from a third party); (ii) enter into, or offer or agree to enter into
an acquisition or other business combination transaction relating to the Company
(including with a third party); or (iii) propose any of the foregoing, unless
and until such offer or proposal shall have been specifically invited in writing
by the Company or through its authorized representatives acting as agents on
behalf of the Company. If at any time during such period, we are approached by
any third party concerning our or their participation in a transaction involving
the Company's securities or assets, we will promptly inform the Company of the
nature of each contact and the parties thereto.
6. Until the earliest of (i) a definitive agreement regarding the
acquisition of substantially all of the assets or stock of the Company by us has
been executed; (ii) an acquisition of substantially all of the assets or stock
of the Company by a third party bu been consummated; or (iii) three years from
the date of this Agreement, we agree not to initiate or maintain contact (except
for those contacts made in the ordinary course of our business) with any
officer, director or employee of the Company regarding the Company's business,
prospects, operations or finances, except with the express permission of the
Company acting through its authorized representative or by Banc of America
Securities LLC, acting on behalf of the Company. It is understood that the
Company or its authorized agents will arrange for appropriate contacts for due
diligence purposes. All (i) communications regarding this possible transaction,
(ii) requests for additional information, (iii) requests for facility tours or
management meetings, and (iv) discussions or questions regarding procedures,
will be submitted or directed to the Company's agents.
7. We understand that the Company has endeavored to include in the
Information those materials which it believes to be reliable and relevant for
the purpose of our evaluation, but we acknowledge that neither the Company nor
any of its representatives or advisors makes any
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representation or warranty as to the accuracy or completeness of the
Information. We agree that neither the Company nor any of its representatives or
advisors shall have any liability to us or to any of our representatives as a
result of the use of the Information by us and our representatives, and we
understand that only those particular representations and warranties which may
be made by the Company to the purchaser of the assets, stock or business of the
Company in a definitive agreement when, as and if it is executed, and subject to
such limitations and restrictions as may be specified in such definitive
agreement, shall have any legal effect.
8. We agree that, without the Company's prior written consent, we will
not, for a period of two years from the date of this Agreement, directly or
indirectly, (i) solicit the employment of any key employee, officer or senior
manager of the Company or (ii) hire any key employee, officer or senior manager
employed by the Company or any former key employee, officer or senior manager
whose employment with the Company has ceased within 90 days of such solicitation
or hire.
9. In the event that we or anyone to whom we transmit the Information
pursuant to this Agreement are requested or become legally compelled (by oral
questions, interrogatories, request for information or documents, subpoena,
civil investigative demand or similar process) to disclose any of the
Information, we will provide the Company with prompt written notice so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event that such
protective order or other remedy is not obtained, or that the Company waives
compliance with the provisions of this Agreement, we will furnish only that
portion of the Information which is legally required and will exercise our best
efforts to obtain reliable assurance that confidential treatment will be
accorded the Information.
10. We agree that money damages would not be a sufficient remedy for any
breach of this Agreement by us or our directors, officers, employees and agents,
and the Company shall be entitled to equitable relief, including injunction and
specific performance, in the event of any breach of the provisions of paragraphs
1, 2, 3, 5, 6 or 8 of this Agreement. Such remedies shall not be deemed to be
the exclusive remedies for a breach of this Agreement by us or our
representatives but shall be in addition to all other remedies available at law
or equity. We agree to waive and to use our best efforts to cause our directors,
officers, employees or agents to waive, any requirement for the securing or
posting of any bond in connection with such remedy. We understand and agree that
in the event that there is a sale or a controlling interest in the Company, the
acquiror of such interest shall, should the Company so elect, also acquire all
rights of the Company pursuant to this Agreement including without limitation,
the right to enforce all terms of this Agreement. We understand that this
Agreement is for the benefit of the Company and the Company shall have the right
to enforce all the terms of this Agreement.
11. It is further understood and agreed that no failure or delay by the
Company in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege
hereunder.
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12. This Agreement shall be governed and construed in accordance with the
laws of the State of California applicable to agreements made and to be
performed within such state.
Very truly yours,
Wind Point Partners
Salam Chaudhary
Vice President
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