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Exhibit (c)(3)
CONFIDENTIALITY AGREEMENT
This letter sets forth the Confidentiality Agreement (the "Agreement") between
Xxxxxxx Corporation (the "Recipient") and Penobscot Shoe Company (the
"Company"), whereas the Company and the Recipient are in discussions regarding a
possible business transaction (a "Transaction"). In connection with the
consideration of a Transaction, it will be necessary for the Company, or Advest,
Inc. ("Advest") as the Company's financial advisor, to release to the Recipient
certain confidential oral and written information (the "Confidential
Information" as defined in Section 2). In consideration of being furnished with
such Confidential Information, Xxxxxxx Corporation agrees to the provisions of
this Agreement set forth below.
1. Disclosure and Use of Confidential Information. (a) The Recipient shall
disclose the Confidential Information only to those of its directors,
officers, employees, counsel, agents, financial advisers, investment
bankers and commercial bankers (collectively "Representatives")
authorized and necessary in considering a Transaction, and take all
appropriate steps to prevent the unauthorized use or disclosure of the
Confidential Information by such Representatives including their
acknowledgments that they have read and understand this Agreement and
undertake to be bound by its terms, and not to allow access to the
Confidential Information by any other person.
(b) The Recipient shall not, without the prior written consent of the
Company, disclose to any person or entity other than its
Representatives either (i) the fact that discussions or negotiations
are taking place concerning a Transaction between the Company and the
Recipient, or (ii) any of the terms, conditions or other facts with
respect to any such possible Transaction, including, without
limitation, the status of negotiations with respect thereto.
(c) Unless authorized by the Company, the Recipient shall refrain from
any contact with the Company's employees, competitors, or customers, or
their affiliates, officers or directors regarding the Recipient's
involvement with the Company or any other matter pertaining to the
Company or contained in the Confidential Information.
2. Confidential Information. (a) The term "Confidential Information,"
as used herein, shall mean any and all oral, written or tangible
(including information on diskette or other data storage media)
information relating to the business or operations of the Company not
generally known by others, including, but not limited to, that
contained in the Confidential Information Memorandum provided by
Advest, and that relating to products and proposed products, customers,
suppliers, manufacturers, methods of merchandising and selling,
finances, organizational structure, operating procedures, business plan
and strategies, sales volume, pricing and proposed pricing and sales
and marketing
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strategies of the Company as well as any other information which gives
or may give the Company a competitive advantage over its competitors.
Confidential Information shall also include
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comparable information that the Company may receive or has received
belonging to others who do business with the Company.
(b) All information relating to the Company and its business shall be
deemed to be and treated as Confidential Information subject to the
provisions of this Agreement unless clearly marked otherwise or unless
(i) it was generally known to the public prior to disclosure to the
Recipient; (ii) it becomes generally known to the public through no
wrongful act or failure to act by the Recipient; (iii) it is lawfully
in possession of the Recipient, as evidenced by written documents,
prior to the receipt of the Confidential Information; or (iv) it is
disclosed to the Recipient by a source other than the Company, which
disclosure is not in breach or violation of any law or any obligation
to the Company or any other person or entity.
3. Return of Tangible Materials. Upon request by the Company, the
Recipient will return all Confidential Information in its own
possession or by any of its Representatives and, subject to applicable
legal and regulatory requirements, will destroy any copies, including
all summaries, analyses, studies and other documents prepared,
compiled, developed or otherwise acquired by the Recipient or any
Representative during the course of its business relationship with the
Company (collectively "Tangible Materials"). An authorized officer of
the Recipient shall confirm such return and destruction in writing to
the Company.
4. No Representation or Warranty. The Recipient understands and
acknowledges that neither the Company nor any of its representatives or
advisors, including without limitation Advest, has made or makes any
representation or warranty, express or implied, as to the accuracy or
completeness of the Confidential Information, and that the Recipient
will conduct and rely solely upon its own investigations into the
affairs and business prospects of the Company and the representatives
of the Company set forth in a definitive transaction agreement with the
Company as the basis for the potential Transaction. The Recipient
agrees that neither the Company, nor any of its respective officers,
directors, employees, stockholders, owners, affiliates or advisors,
will have any liability to the Recipient or any other person resulting
from the Recipient's use of the Confidential Information; except that
those representations or warranties, if any, which are made to the
Recipient in a definitive transaction agreement when, as, and if any is
executed and delivered, and subject to such limitations and
restrictions as may be specified in such transaction agreement, will be
legally binding upon the party(s) so representing and warranting.
5. Non-Solicitation of Employees. The Recipient agrees that for a period
of one year from the date of the Recipient's termination of discussions
with Advest or the Company that neither it, nor any of its subsidiaries
will solicit the employment of any person who was, as of the date
hereof, an employee of the Company whose identity and position or job
functions have been disclosed during the period of
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CONFIDENTIALITY AGREEMENT
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investigation of a proposed Transaction, unless such person was no
longer employed by the Company prior to such solicitation.
6. Rule 10b-5 Limitations. The Recipient hereby acknowledges that it is
aware that the United States securities laws prohibit any person who
has material non-public 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.
7. Due Authorization and Ownership. Each party hereto represents and
warrants to the other as follows:
(a) This Agreement has been duly authorized by all
requisite corporate action and such party has the
corporate power and authority to execute and deliver,
and to perform its obligation under, this Agreement.
(b) This Agreement constitutes a valid and binding
obligation of such party, enforceable against such
party in accordance with its terms.
(c) As of the date of this Agreement, neither the
Recipient nor its affiliates and associates (as
defined in Rule 12b-2 under the Exchange Act)
beneficially own any of the outstanding voting
securities of the Company.
8. Remedies. The Recipient assumes liability for damages arising from the
unauthorized use or disclosure of the Confidential Information or any
breach of this Agreement by its authorized Representatives or former
authorized Representatives. Because any breach by the Recipient of the
terms of this Agreement may result in irreparable harm to the Company
for which the Company would have no adequate remedy at law, the Company
will be entitled to equitable relief, including injunction and specific
performance, in the event of any breach of the provisions of this
Agreement, in addition to all other remedies available to the Company
at law or in equity.
9. Waiver. It is understood and agreed by the Recipient that no failure or
delay by the Company under this Agreement in exercising any right,
power or privilege hereunder will operate as a waiver thereof, nor will
any single or partial waiver or consent given by the Company on any one
occasion be construed as a bar to or waiver of any right on any other
occasion.
10. Construction and Interpretation. This Agreement, and all questions
arising in connection herewith, shall be governed and construed in
accordance with the laws of the State of Maine. The Recipient hereby
submits to the non-exclusive
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jurisdiction of the courts of the State of Maine and the federal courts
of the United States located in such state for purposes of any action
relating to the interpretation or enforcement of the provisions of this
Agreement.
11. Miscellaneous. It is understood that all (i) communications regarding a
Transaction with the Company, (ii) requests for additional information,
(iii) requests for facility tours or management meetings, and (iv)
discussions or questions regarding procedures in pursuing a Transaction
will be submitted or directed to Xx. Xxx X. Xxxxx, Managing Director,
Advest; Xxxxxx Xxxxx, Chairman of the Company; or Company's attorneys.
The Agreement shall remain in effect for a period of two years from the
date of receipt of the Confidential Information by the Recipient.
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If you agree to the terms of this Agreement, please indicate your acceptance by
signing it where indicated on the following page and returning it to the
attention of Xx. Xxx X. Xxxxx of Advest.
AS RECIPIENT:
By: H. Xxxxx X. Xxxxxxx Date: 9/21/99
Printed Name: Xxxxx
Title: Chief Executive Officer
For and on behalf of: Xxxxxxx Corporation
ACKNOWLEDGED, AGREED AND CONFIRMED:
By: /s/ Xxxxxx Xxxxx Date: 9/21/99
Printed Name: Xxxxxx Xxxxx
Title: Chairman and Chief Executive Officer
For and on behalf of: Penobscot Shoe Company (the "Company")
