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EXHIBIT (c)(3)
PLASMA-THERM, INC.
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the "Agreement"), made and entered into
as of this 1st day of September, 1999, by and between Plasma-Therm, Inc., a
corporation organized under the laws of the State of Florida ("PTI" or the
"Company") and Balzers Limited through its Balzers Process System Division, a
corporation organized under the laws of the Principality of Liechtenstein
("BPS").
The parties hereto desire to explore and discuss a possible transaction
or to further a business relationship between them.
In connection therewith, the parties will be given access to
Confidential Information (as defined below) relating to each other's businesses
and affairs;
In consideration of the promises and the mutual covenants and
obligations hereinafter set forth, the parties agree as follows.
SECTION 1. CONFIDENTIAL INFORMATION. Except as set forth below,
"Confidential Information" shall mean and include any financial, operational,
technical and other information relating to the present and future businesses
and affairs of the party disclosing the information (the "Disclosing Party"),
which information is provided to the other party (the "Receiving Party") in
connection with the business relationship provided in written, oral, graphic,
pictorial or recorded form or stored on computer discs, hard drives, magnetic
tape or digital or any other electronic medium (it being understood that oral
communications will be confirmed in writing within three (3) working days). It
is further understood that the term "Confidential Information" does not mean and
include information which:
(a) is or subsequently becomes publicly available without the
Receiving Party's breach of any obligation owed to the
Disclosing Party;
(b) prior to disclosure hereunder is within the possession of the
Receiving Party, and was obtained by the Receiving Party from a
source not under obligation not to disclose such information or
any of its Representatives as defined below.
(c) is lawfully received by the Receiving Party from a third party
(other than the Disclosing Party) having rights to disseminate
without restriction such information and such information is
received by the Receiving Party from such third party without
notice to the Receiving Party of any restriction against its
further disclosure;
(d) is disclosed with the prior written approval of the Disclosing
Party; or
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(e) is required to be produced by the receiving party under order of
a court of competent jurisdiction or a valid administrative or
congressional subpoena; PROVIDED, HOWEVER, that upon issuance of
any such order or subpoena, the Receiving Party shall promptly
notify the Disclosing Party and shall provide the Disclosing
Party with an opportunity (if then available) to contest the
propriety of such order or subpoena (or to arrange for
appropriate safeguards against any further disclosure by the
court or administrative or congressional body seeking to compel
disclosure of such Confidential Information).
SECTION 2. OWNERSHIP. The Receiving Party hereby acknowledges and
agrees that all of the Confidential Information of the Disclosing Party is the
exclusive proprietary property of the Disclosing Party, is being disclosed
solely for the purpose of enabling the parties to conduct the discussions
relating to the Transaction is to be used by the Receiving Party only in such
limited manner as is permitted by the provisions of this Agreement.
SECTION 3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Confidential
Information shall (a) be kept confidential by the Receiving Party and not
disclosed to any third party (except as provided in this Section 3) and (b) not
be used by the Receiving Party for any commercial or competitive purpose
whatsoever and may only be used in connection with the discussions relating to
the Transaction. The Receiving Party may, however, disclose the Confidential
Information to its directors, officers, Affiliates (as defined below) or legal
or financial advisors (collectively, "Representatives"), but only if such
Representatives reasonably need to know the Confidential Information for the
purpose of evaluating the Transaction. The Receiving Party will (i) inform each
of its Representatives receiving Confidential Information of the confidential
nature of the Confidential Information and of the existence and the terms of
this Agreement, (ii) direct its Representatives to treat the Confidential
Information confidentially and not to use it other than in connection with an
evaluation of the Transaction, (iii) require that any Representative other than
a director or officer of Disclosing Party or Receiving Party execute a
counterpart of this Agreement prior to any disclosure by the Receiving Party of
Confidential Information to such Representative, which counterpart shall have
annexed thereto a schedule (the "Disclosure Schedule") setting forth in
appropriate detail the Confidential Information that is to be disclosed to such
Representative. For purposes of this Agreement, the term "Affiliate" shall mean
any Person that, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, the Person
specified. As used in the foregoing definition, the term "Person" shall mean an
individual, firm, trust, association, corporation, partnership, government
(whether federal, state, local or other political subdivision, or any agency or
bureau of any of them) or other entity.
SECTION 4. CARE AND RETURN OF CONFIDENTIAL INFORMATION. The Receiving
Party and its Representatives hereby agree to use their best efforts to prevent
inadvertent disclosure of Confidential Information to others. The Receiving
Party agrees to treat the Confidential Information with at least the degree of
care that it treats similar materials of its own, or a higher standard of care
if reasonable under the circumstances.
Upon the request of the Disclosing Party, the Receiving Party
will return to the Disclosing Party all documents which contain Confidential
Information of the Disclosing Party, and agree that the Receiving Party and its
Representatives will not retain any copies thereof.
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SECTION 5. NO LICENSES. Neither the execution of this Agreement nor the
furnishing of any Confidential Information pursuant to this Agreement shall be
construed as granting the Receiving Party or its Representatives, either
expressly or by implication, any license or right to use any Confidential
Information for its own benefit or the benefit of any other Person, firm or
entity, and each party hereto expressly agrees not to so use any such
information except as otherwise provided herein.
SECTION 6. NON-DISCLOSURE OF THE TRANSACTION. Neither party hereto
shall publicly announce or otherwise disclose, without the prior written
consent of the other, any proposed terms of or that discussions relating to the
Transaction are taking place except for such disclosure as the party seeking to
make disclosure has been advised by its legal counsel is required by law, in
which case the party seeking to make disclosure shall provide the other party
with as much prior notice of such announcement or disclosure (including the
proposed text of such announcement or disclosure) as is reasonably possible
under the circumstances (and attempt in good faith to obtain such other party's
concurrence with the manner and extent of such disclosure).
SECTION 7. NO LIABILITY. Neither party hereto shall be under any
obligation of any kind with respect to the Transaction, except for the matters
specifically agreed to herein, unless and until a definitive agreement
regarding the Transaction has been executed and delivered by each of the
parties hereto.
SECTION 8. NON-SOLICITATION. The Company and Plasma-Therm agree that,
without the prior written consent of the other, it will not, for a period of
six months after the date of this agreement, solicit, attempt to divert or
entice away or knowingly hire any person who is an employee of the other or any
of its Affiliates on the date of this agreement.
SECTION 9. STANDSTILL AGREEMENT. For a period of six months following
the date of this Agreement, each of the parties and its affiliates (as defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act), will not (and will not assist or encourage others to) directly
or indirectly, without the written consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to
be acquired, ownership (including but not limited to, beneficial
ownership as defined in Rule 13d-3 under the Exchange Act) of
any of the other party's assets or businesses or any securities
issued by the other party, or any bank debt, claims or other
obligations of the other party, or any rights or options to
acquire such ownership, directly or from a third party;
(b) seek or propose to influence or control the management or
policies of the other party or to obtain representation on the
other's board of directors, or solicit, participate in the
solicitation of, any proxies or consents with respect to any
securities of the other, or make any public announcement with
respect to any of the foregoing or request permission to do any
of the foregoing;
(c) enter into any discussions, negotiations, arrangements or
understandings with any third party with respect to the
foregoing; or
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(d) seek or request permission or participate in any effort to do
any of the foregoing or make or seek permission to make any
public announcement with respect to any of the foregoing.
If at any time during such six months period either party or its
Representatives are approached by any third party with respect to any
of the foregoing, such party shall promptly inform the other of the
nature of such contact and the proposed transaction and shall identify
the parties thereto.
SECTION 10. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida.
SECTION 11. TERM. Except as specified elsewhere herein, the term of
this agreement shall be six months commencing on the date hereof, unless
otherwise agreed in writing by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Confidentiality
Agreement to be executed and delivered by their respective appropriate
officers, thereunto duly authorized, as of the date first written above.
PLASMA-THERM, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer & Secretary
BALZERS LIMITED
Balzers Process Systems Division
By: /s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxxx
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Name: Xx. Xxxxxx Xxxxx Xxxxx Xxxxxxx
Title: Division Manager General Counsel
Semiconductors
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