July 13, 1998
Framatome Connectors International
Tour Framatome 0, xxxxx xx xx Xxxxxxx
00000 XXXXX LA DEFENSE CEDEX
Ladies and Gentlemen:
The purpose of this letter agreement is to reflect the basis upon which
Xxxx Electronics Corp. ("Company") is willing to provide certain Information
(hereinafter defined) to Framatome Connectors International ("Recipient") for
use in connection with a possible transaction between Recipient and the
Company ("Possible Transaction").
For purposes of this letter agreement, "Information" shall mean all
information, documents, and materials that relate to the Possible Transaction
or to the Company or its businesses, operations, or other affairs and that are
furnished to Recipient or its representatives by or on behalf of the Company,
provided that the term "Information" shall not include any information,
documents, or materials that (i) are or become generally available to the
public other than as a result of a disclosure by Recipient or any of its
representatives in violation of this agreement or (ii) are or become available
to Recipient or its representatives on a non-confidential basis from a source
other than the Company or any of its representatives if such source is not
known by Recipient or any of its representatives to be (A) bound by a
confidentiality agreement with the Company or any of its representatives or
(B) otherwise prohibited from transmitting the affected information, documents,
or materials to Recipient or any of its representatives by any contractual,
legal, or fiduciary obligation.
All Information received by Recipient or its representatives shall be
used solely for the purpose of assisting Recipient in evaluating the Possible
Transaction and not in any manner detrimental to the Company. Except as
required by law, judicial or governmental order, or other legal process or
pronouncement (including any discovery request) (collectively, "Law"), neither
Recipient nor its representatives shall, without the Company's prior written
consent, disclose any Information to any person or entity other than
Recipient's representatives on a need to know basis. Recipient shall be
liable to the Company for any breaches of this letter agreement by any of
Recipient's representatives.
In addition, without the prior written consent of the Company or except
as required by Law, Recipient will not, and will direct its representatives
not to, disclose to any person either the fact that discussions with respect
to the Possible Transaction are taking place or any of the terms, conditions
or other facts with respect to the Possible Transaction.
In the event Recipient or any of its representatives are requested or
required by Law to disclose any Information, Recipient will give the Company
prompt written notice of such request or requirement so that the Company may
seek an appropriate protective order or other remedy, and Recipient will
cooperate with the Company to obtain such protective order or other remedy.
In the event such protective order or other remedy is not obtained, Recipient
and its representatives will furnish only that portion of the Information
that, in the reasonable opinion of Recipient's counsel, is legally required to
be disclosed and will use Recipient's reasonable best efforts to obtain
assurances that confidential treatment will be accorded to such Information.
Recipient hereby acknowledges that the Information is being furnished in
consideration of Recipient's agreement that Recipient and Recipient's
affiliates, as defined in Rule 12b-2 under the Securities Exchange Act of
1934, as amended ("Exchange Act"), will not (and Recipient and Recipient's
affiliates will not assist or encourage others to) directly or indirectly, for
a period of eighteen (18) months from the date hereof: (a) make any public
announcement with respect to, or submit any proposal for, a transaction
(excluding commercial transactions in the ordinary course of business) between
the Company and Recipient (and/or any of Recipient's affiliates or any person
acting in concert with Recipient) or any such transaction involving the
Company, unless such proposal is directed and disclosed solely to the
management of the Company or its designated representatives; (b) by purchase
or otherwise, acquire, offer to acquire, or agree to acquire, ownership of any
assets or businesses of the Company or its affiliates or of any securities
issued by the Company or its affiliates or any direct or indirect rights
(including convertible securities) or options to acquire such ownership (or
otherwise act in concert with any person which so acquires, offers to acquire,
or agrees to acquire); (c) make, or in any way participate in, directly or
indirectly, any "solicitation" of "proxies" (as such terms are defined or used
in Regulation 14A under the Exchange Act) with respect to, or seek to advise
or influence any person with respect to, the voting of any securities issued
by the Company; (d) initiate, propose or otherwise solicit stockholders for
the approval of one or more stockholder proposals with respect to the Company
as described in Rule 14a-8 under the Exchange Act or induce or attempt to
induce any other person to initiate any stockholder proposal; (e) acquire or
affect the control of the Company or directly or indirectly participate in or
encourage the formation of any "group" (within the meaning of Section 13(d)(3)
of the Exchange Act) which owns or seeks to acquire ownership of voting
securities of the Company, or to acquire or affect control of the Company; (f)
call or seek to have called any meeting of the stockholders of the Company or
execute any written consent in lieu of a meeting of holders of any securities
of the Company; (g) seek election or seek to place a representative on the
Board of Directors of the Company or seek the removal of any member of the
Board of Directors; (h) otherwise, directly or indirectly, alone or in concert
with others, seek to influence or control the management, Board of Directors
or policies of the Company or any of its affiliates; or (i) request any
waiver, modification, termination or amendment of this paragraph or the
relinquishment by the Company of any rights with respect thereto except in
connection with a proposal submitted in the manner contemplated by clause (a)
of this paragraph.
Recipient acknowledges that it is aware, and that Recipient will advise
Recipient's representatives who are informed of the Possible Transaction, that
the United States securities laws prohibit any person who has material,
nonpublic information concerning a company from purchasing or selling
securities of that company or disclosing 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.
Without the prior written consent of the Company, Recipient and its
affiliates will not, for a period of two (2) years from the date hereof,
solicit any officer or general manager of the Company to become employed or
otherwise retained by Recipient or any of its affiliates; provided, that
nothing herein shall prohibit any advertisement or general solicitation that
is not specifically targeted at such officers, managers or key employees nor
shall it prohibit the solicitation of any such officer, manager or key
employee who (i) initiates employment discussions with you or your affiliates
or (ii) is not employed by the Company on the date you first solicit such
officer, manager or key employee.
Recipient acknowledges that neither the Company nor any of its
representatives is making any representation or warranty, express or implied,
as to the accuracy or completeness of the Information and that the Company
expressly disclaims any and all liability that may be based on the
Information, errors therein and omissions therefrom, and Recipient expressly
agrees that neither the Company nor any of its representatives shall have any
liability to Recipient or any other person resulting from the use of the
Information.
Neither the Company nor Recipient shall be under any obligation to
proceed with or consummate any Possible Transaction except as provided in a
definitive written agreement that is duly authorized, executed, and delivered
by both such parties.
Upon the request of the Company, Recipient shall return or destroy, and
shall cause its representatives to return or destroy (in each case at the
Company's option), all originals and copies of all Information held by
Recipient or its representatives.
Recipient agrees that money damages would not be sufficient remedy for
any breach of this letter agreement by Recipient or its representatives, 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.
This letter agreement may be executed in one or more counterparts,
shall terminate on the third anniversary of the date hereof, and shall be
governed by the laws of the State of New York, without regard to principles of
conflicts of laws.
Very truly yours,
XXXX ELECTRONICS CORP.
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Senior Vice President and
Chief Financial Officer
Accepted and agreed to as of the date
first set forth above:
FRAMATOME CONNECTORS INTERNATIONAL
By: /s/ Xxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
