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Exhibit 2.2
CONFIDENTIALITY AGREEMENT
DATE: November 23, 1999
PARTIES: SPEEDFAM-IPEC Inc., ("Seller")
An Illinois corporation
FUJIMI INCORPORATED, ("Buyer")
a Japanese corporation
RECITALS:
A. Pursuant to a Stock Purchase Agreement dated November 23, 1999 (the
"Purchase Agreement"), Seller has agreed to sell to Buyer and Buyer
has agreed to purchase from Seller one thousand (1,000) shares of
common stock of Fujimi Corporation, an Illinois corporation (the
"Company") which constitutes all of Seller's interest in the Company.
B. As a condition to closing the sale, Seller and Buyer are obligated to
enter into this Confidentiality Agreement.
AGREEMENT:
In consideration of the covenants set forth below, and in further
consideration of the payment of One Hundred Thousand Dollars ($100,000) paid by
Buyer to Seller, receipt and sufficiency for which is hereby acknowledged, the
parties agree as follows:
SECTION 1. DEFINITION OF CONFIDENTIAL INFORMATION
"Confidential Information" shall be deemed to include all notes,
analyses, compilations, studies, procedures, technical information, customer
lists, products each customer is purchasing from the Company, price lists,
chemical components of any abrasive/polishing compound manufactured by Buyer
and/or any of its affiliates, and other trade secrets, whether or not in
writing, relating to the operations and business of the Company. Confidential
Information does not include information which (i) is or becomes generally
available to the public other than as a result of a disclosure or its
affiliates; (ii) was within Seller's possession prior to its ownership of any
equity interest in the Company; (iii) becomes available to Seller on a
non-confidential basis from a source other than the Company, Buyer or any of
their affiliates, provided that such source is not bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company, Buyer, any of their respective affiliates or any
other party with respect to such information; (iv) is developed by Seller
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independently of the Confidential Information or (v) is approved for release by
written authorization of the Company or Buyer.
SECTION 2. SELLER'S COVENANTS
Seller hereby covenants and agrees that for a period of five (5) years
from the date of this Agreement:
(1) That neither it nor its affiliates will disclose any of the
Confidential Information in any manner whatsoever unless either the Company or
Buyer has given its prior written consent.
(2) That it will use its best efforts to prevent any affiliate or any
officer, director, employee or agent of either Seller or an affiliate to breach
the terms of this Agreement and shall make all reasonable efforts to assure that
such individuals and/or entities comply with the same standards of
confidentiality as bind Seller pursuant to this Agreement.
(3) That notwithstanding the above, in the event Seller or its
affiliates is requested or required (by oral questions, interrogatories,
requests for information or documents in legal proceedings, subpoena, civil
investigative demand or other similar process) to disclose any of the
Confidential Information, Seller shall provide Buyer with prior written notice
as is practical under the circumstances of any such request or requirement so
that Buyer may take whatever action it deems appropriate. If Seller or any of
its affiliates is legally compelled to disclose the Confidential Information to
any tribunal or is requested by any governmental regulatory organization to
provide the Confidential Information, it or its affiliate may, without liability
hereunder, disclose to such tribunal or governmental regulatory organization
only that portion of the Confidential Information which it is legally required
to disclose or that is requested by any governmental regulatory organization, as
the case may be, provided that Seller or its affiliates must exercise their best
efforts to preserve the confidentiality of the Confidential Information,
including, without limitation, by cooperating with the Buyer as the Buyer may
reasonably request.
SECTION 3. ENFORCEMENT
It is recognized that, in the event of breach of covenants of Seller,
damage to Buyer would be difficult if not impossible to ascertain. It is
therefore agreed that Buyer, in addition to and without limiting any other
remedy or right that it may have, shall have the right to an injunction against
Seller and/or its affiliates, as the case may be, issued by a court of competent
jurisdiction enjoining such breach.
SECTION 4. LITIGATION
If any suit or action (including any appeal) is brought to enforce this
Agreement, the prevailing party shall be entitled to receive from the other
party reasonable attorney fees and costs incurred in such litigation, including
any appeals.
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SECTION 5. SEVERABILITY
If any provision of this Agreement is deemed to be illegal or otherwise void,
invalid, or unenforceable, the provision shall be disregarded and the remainder
of this Agreement without that provision shall not be affected and shall remain
in full force and effect.
SECTION 6. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with and
under the laws of the state of Illinois.
IN WITNESS WHEREOF, the Seller and Buyer have caused this Agreement to
be executed by their duly authorized representatives, all as of the date first
above written.
SELLER:
SPEEDFAM-IPEC Inc.
By: /s/
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Xxxxx X. Xxxxxx, Co-Chairman
BUYER:
FUJIMI INCORPORATED
By: /s/
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X. Xxxxxxxxx, Chairman
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