CONFIDENTIALITY AGREEMENT FLEET NATIONAL BANK
XXX XXXXXXX XXXXXX
XXXXXX, XX 00000
PRIVATE & CONFIDENTIAL PHONE: 000-000-0000
---------------------- FAX: 000-000-0000
Xx. Xxxx Xxxxxx
Vice President
Government & Space Products August 23, 1999
International Rectifier
000 Xxxxxx
Xx Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
As a condition to your being furnished information in connection with
your consideration of a possible transaction involving our client, a company
engaged in the business of manufacturing and distributing power
semiconductors (the "Company"), you agree to treat information concerning
the Company (whether prepared by the Company, its advisors or otherwise)
which is furnished to you by or on behalf of the Company (herein collectively
referred to as the "Evaluation Material") in accordance with the provisions
of this letter and to take or abstain from taking certain other actions
herein set forth. The term Evaluation Material does not include information
which (i) is already in your possession without any obligation of
confidentiality, or (ii) becomes generally available to the public other
than as a result of a disclosure by you or your directors, officers,
employees, agents, or advisors, or (iii) becomes available to you on a
non-confidential basis from a source other than the Company or its advisors,
provided that such source is not known by you to be bound by a
confidentiality agreement with, or other obligation of secrecy to the Company or
another party with respect to the Evaluation Material, (iv) is
independently developed by you, provided the person or persons developing
same have not had access to the Evaluation Material, or (v) is required to be
disclosed pursuant to judicial, administrative, governmental, or regulatory
order.
You hereby agree that the Evaluation Material will be used solely for
the purpose of evaluating a possible transaction between the Company and you,
and that, except as required by law or legal process, the Evaluation Material
will be kept confidential by you and your advisors; provided, however, that
(i) any information contained in the Evaluation Material may be disclosed
to your directors, officers and employees and to representatives of your
advisors who need to know such information for the purpose of evaluating a
possible transaction between the Company and you (it being understood that
such directors, officers, and employees and representatives shall be informed
by you of the confidential nature of such information and shall be directed
by you to treat such information confidentially), and (ii) any disclosure of
such information may be made to which the Company consents in writing.
In addition, without the prior written consent of the Company and except
as required by law or legal process, you will not, and will direct such
directors, officers, and employees and representatives not to, disclose to
any person either the fact that discussions or negotiations are taking place
concerning a possible transaction between the Company and you or any of the
terms, conditions or other facts with respect to any such possible
transaction, including the status thereof.
August 23, 1999
Page 2
In the event that you or your representatives are required by law or
legal process to disclose all or any part of the information contained in the
Evaluation Material or the fact that discussions or negotiations are taking
place, you agree to immediately notify the Company of the existence,
terms and circumstances surrounding such a request so that it may seek an
appropriate protective order prior to your disclosure of such information.
Although the Company has endeavored to include in the Evaluation
Material information known to it which it believes to be relevant for the
purpose of your investigation, you understand that neither the Company nor
any of its representatives or advisors have made or make any representation
or warranty as to the accuracy or completeness of the Evaluation Material. You
agree that neither the Company nor its representatives or advisors shall have
any liability to you or any of your representatives or advisors resulting from
the use of the Evaluation Material.
In the event that you do not proceed with a transaction with the Company
within a reasonable time, at the request of the Company, you shall promptly
redeliver to the Company all written Evaluation Material and any other
written material containing or reflecting any information in the Evaluation
Material (whether prepared by the Company, its advisors or otherwise) and will
not retain any copies, extracts or other reproductions in whole or in part of
such written material.
You agree that unless and until a definitive agreement between the
Company and you with respect to a transaction has been executed and
delivered, neither the Company nor you will be under any legal obligation of
any kind whatsoever with respect to a transaction by virtue of this letter or
any written or oral expression with respect to a transaction by any of the
Company's or your stockholders, directors, officers, employees, agents or any
other representatives or the Company's or your advisors or their
representatives except, in the case of this letter, for the matters
specifically agreed to herein.
You agree to be responsible for enforcing the confidentiality of the
Evaluation Material with respect to your affiliates, and you agree to take
such action, legal or otherwise, to the extent necessary to prevent any
disclosure or non-permitted use of the Evaluation Materials by any such
affiliate. In the event the Company initiates any action to enforce your
obligations hereunder, you agree to reimburse the Company for all costs and
expenses, including reasonable attorneys' fees and expenses, incurred by it
in this regard.
It is understood and agreed that money damages may not be sufficient
remedy for any breach of this letter agreement by you and that the Company
may be entitled to specific performance as a remedy for any such breach. Such
remedy shall not be deemed to be the exclusive remedy for breach of this letter
agreement but shall be in addition to all other remedies available at law or
in equity.
Unless you purchase the assets or the stock of the Company, you agree
for a period of twelve months after the date hereof, not to actively solicit
employment, directly or as a consultant, of any employee of the Company;
provided, however, that general advertising announcing employment
opportunities or soliciting employment candidates, or independent searches by
outside consultants shall not be comprehended within the meaning of "solicit"
for these purposes.
You understand that Fleet National Bank ("Fleet") has been appointed the
Company's exclusive financial advisor for the purposes of evaluating a
possible transaction. You agree to direct all inquiries relating to the
Company to Fleet representatives and not to contact any stockholder of the
Company or any employee of the Company.
This agreement shall be governed and construed in accordance with the
laws of The Commonwealth of Massachusetts without giving effect to its
conflict of law principles or rules. The parties hereby consent to the
jurisdiction of any state or federal court located within the Commonwealth
of Massachusetts, and irrevocably agree that, subject to the Company's
election, all
August 23, 1999
Page 3
actions or proceedings arising out of or arising from this letter agreement
shall be litigated in such courts. Recipient accepts, generally and
unconditionally, the exclusive jurisdiction of the aforesaid courts and
waive any defense of FORUM NON CONVENIENS, and hereby irrevocably agrees to
be bound by any judgment rendered by any such court in connection with this
agreement. All obligations under this agreement shall survive your
evaluation of the Evaluation Materials and your discussions and negotiations
with the Company.
The agreement set forth in this letter may be modified or waived only by
a separate writing by the Company and you expressly so modifying or waiving
such agreement.
This agreement shall terminate, and its provisions be of no further
force and effect, after thirty-six months from the date hereof.
If you are in agreement with the foregoing, please have this letter
executed by your authorized representative and return a copy to the
undersigned.
Very truly yours,
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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Conformed and Agreed to:
INTERNATIONAL RECTIFIER
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: V.P. Government & Space Products
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Date: 8/27/99
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