Exhibit (c)(2)
Confidentiality Agreement, dated February 5, 1999, between Xxxxxxxxxx & Co.,
LLC, an affiliate of the Parent, and the Company, and countersigned by
Xxxxxxxxxx & Co., LLC on February 8, 1999.
[LAZARD FRERES & CO. LLC LETTERHEAD]
February 5, 1999
PERSONAL AND CONFIDENTIAL
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Xxxxxxxxxx & Co.
000 X. Xxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Dear Sir:
You have requested certain non-public information regarding Durakon
Industries, Inc. (the "Company") in connection with the possible sale of the
Company, which transaction may take the form of a merger or the sale of assets
or equity securities or other interests (the "Transaction"). As a condition to
furnishing such information to you, we, on behalf of the Company, are requiring
that you agree, as set forth below, to treat confidentially such information and
any other information that we or the Company furnish to you, whether furnished
before or after the date of this letter (collectively, the "Evaluation
Material").
You agree not to use any of the Evaluation Material in any way for any
purpose other than in connection with the purposes for which such material has
been provided to you. You agree that the Evaluation Material will not be used
for competitive purposes or to obtain any commercial advantage with respect to
the Company, and that such information will be kept confidential by you;
provided, however, that any of such information may be disclosed to such of your
directors, officers, employees, representatives, affiliates (as defined in Rule
405 under the Securities Act of 1933, "Affiliates") and other agents
(collectively, the "Agents") who need to know such information (it being
understood that such Agents shall be informed by you of the confidential nature
of such information, shall be directed by you to treat such information
confidentially and shall be informed that by receiving such information they are
agreeing
to be bound by this agreement). You agree to be responsible for any breach of
this agreement by you or your Agents.
In the event that you or your Agents should be requested or required (by
oral questions, interrogatories, requests for information or documents subpoena,
Civil Investigative Demand or similar process) to disclose any information
supplied to you in the course of your dealing with the Company, it is agreed
that you will provide Lazard Freres and the Company with prompt notice of any
such request, so that the Company may seek an appropriate protective order
and/or waive your compliance with the provisions of this agreement. It is
further agreed that if, in the absence of a protective order or the receipt of a
waiver hereunder, you are nonetheless, in the opinion of counsel, compelled to
disclose information concerning the Company to any tribunal, or else to be
liable for contempt or suffer other censure or penalty, you or your Agents may
disclose such information to such tribunal without liability hereunder,
provided, however, that you give the Company advance written notice of the
information to be disclosed as far in advance of its disclosure as is practical
and, at the Company's request, seek to obtain assurances that it will be
accorded confidential treatment.
Upon our request, you will promptly deliver to us the Evaluation Material
and will promptly destroy all memoranda, notes, and other writings prepared by
you or your Agents based thereon.
The term "Evaluation Material" does not include information which (i)
becomes generally available to the public other than as a result of a disclosure
by you or your Agents, (ii) was available to you on a non-confidential basis
prior to its disclosure to you by the Company, or (iii) becomes available to you
on a non-confidential basis from a source other than the Company, provided that
such source is not known to you to be bound by a confidentially agreement with
the Company.
Without the Company's prior written consent you will not, and you will
direct your Agents not to, disclose to any person either the fact that
discussions or negotiations are taking place concerning a possible transaction
relating to the Company, or any of the terms, conditions or other facts with
respect to any such possible transaction, including the timing or status
thereof. The term "person" as used in this letter shall be broadly interpreted
to include, without limitation, any corporation, company, partnership or
individual.
You acknowledge that you are (i) aware that the United States securities
laws prohibit any person who has material nonpublic information about a company
from purchasing or selling securities of such company, or from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such
securities and (ii) familiar with the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder and agree that you will neither
use, nor cause any third party to use, any Evaluation Material in
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contravention of such Act or any such rules and regulations, including Rules
10b-5 and 14e-3.
It is understood that Lazard Freres will arrange for appropriate contacts
for due diligence and all other proposals, and any communications regarding a
possible transaction or requests for information will be submitted exclusively
to Lazard Freres.
You agree that unless and until a final agreement regarding a Transaction
has been executed by you and us, we are not under any legal obligation and shall
have no liability to you or any of your Agents of any nature whatsoever with
respect to any Transaction by virtue of this Agreement or otherwise (other than
with respect to the confidentiality and other matters set forth herein). You
also acknowledge and agree that (i) we may conduct the process that may or may
not result in a Transaction in such manner as we, in our sole discretion, may
determine (including, without limitation, negotiating and entering into a final
acquisition agreement with any party without notice to you) and (ii) we reserve
the right to change (in our sole discretion, at any time and without notice to
you) the procedures relating to our and your consideration of any Transaction
(including, without limitation, terminating all further discussions with you and
requesting that you return or destroy the Evaluation Material as described
above).
Although you understand that we have endeavored to include in the
Evaluation Material information known to us which we believe to be relevant for
the purpose of your investigation, you understand that neither Lazard Freres nor
the Company makes any representation or warranty as to the accuracy or
completeness of the Evaluation Material or any other information which we or the
Company shall furnish to you orally or in writing. You agree that neither Lazard
Freres nor the Company shall have any liability to you or your Agents resulting
from the use of the Evaluation Material by you or such Agents.
Without the prior written consent of the Company, you shall not, nor shall
you permit your Affiliates to: (a) acquire, offer to acquire, or agree to
acquire, directly or indirectly, by purchase or otherwise, any voting securities
or direct or indirect rights or options to acquire any voting securities of the
Company; (b) except at the specific written request of the Company, propose to
enter into any merger or business combination involving the Company or to
purchase a material portion of the assets of the Company; (c) make, or in any
way participate, directly or indirectly, in any "solicitation" of "proxies" to
vote (as such terms are used in the proxy rules of the Securities Exchange Act
of 1934), or seek to advise or influence any person or entity with respect to
the voting of, any voting securities of the Company; (d) form, join or in any
way participate in a "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934) with respect to any voting securities of the
Company; (e) otherwise act, alone or in concert with others, to seek to control
or influence the management, board of directors or policies of the Company; or
(f) take any action for the purpose of requiring the Company to make a public
announcement regarding the possibility of a business combination or merger with
you.
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It is further understood and agreed that no failure or delay by the Company
in exercising any right, power or privilege hereunder shall operate as a waiver
hereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege
hereunder. You agree that money damages would not be a sufficient remedy for any
breach of this agreement by you or your Agents, and that in addition to all
other remedies the Company shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any such breach, and you
further agree to waive, and to use your best efforts to cause your Agents to
waive, any requirement for the securing or posting of any bond in connection
with such remedy.
You acknowledge and agree that this letter agreement is being entered into
for the benefit of the Company and may be enforced by the Company as if it were
a party hereto.
This letter agreement shall be governed and construed in accordance with
the laws of the State of New York without giving effect to the conflicts of laws
principles thereof.
If you are in agreement with the foregoing, please sign and return one copy
of this letter which will constitute our agreement with respect to the subject
matter of this letter.
Very truly yours,
LAZARD FRERES & CO. LLC,
On behalf of Durakon Industries, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Managing Director
CONFIRMED AND AGREED TO:
By: /s/ Xxxxx X. Xxxxxxxxxx, III
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Xxxxx X. Xxxxxxxxxx, III
Chairman
Date: 2/8/99
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