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EXHIBIT (c)(7)
July 10, 1996
Square Industries, Inc.
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
CONFIDENTIALITY AGREEMENT
Dear Sirs:
In connection with our possible interest in an acquisition of or merger
with Square Industries, Inc. (the "Transaction"), you or your Representatives
(as defined below) are furnishing us or our Representatives with certain
information (written or oral) which is either non-public, confidential or
proprietary in nature. This information shed to us or our Representatives,
together with any notes, analyses, compilations, forecasts, studies, memoranda,
computer-stored data or other documents prepared by us or our Representatives
which contain or otherwise reflect such information, is hereinafter referred to
as the "Information". As used in this agreement, the term "Representative"
means, as to any person, such person's affiliates and its and their respective
directors, officers, employees, partners, shareholders, members, agents,
advisors (including financial advisors, attorneys and accountants) and other
representatives.
In consideration of your furnishing us with the Information, we agree that
the Information will be kept confidential and shall not, without your prior
written consent, be disclosed by us or our Representatives, in any manner
whatsoever, in whole or in part, and shall not be used by us or our
Representatives other than in connection with evaluating a possible
Transaction. For purposes hereof, the term "Information" shall not include
such portion of the information which (i) is or becomes generally available to
the public other than as a result of a disclosure by us or our Representatives
or (ii) is or becomes available to us or our Representatives on a
nonconfidential basis from a source which, to our knowledge, is not prohibited
from disclosing such information to us or our Representatives. With respect to
the latter it shall be assumed that any source which provides us with
information has been prohibited from disclosing the Information to us or our
Representatives unless the Company prior to any disclosure has been advised by
us of the source and the Company has not advised us of the prohibition.
We agree to reveal the Information only to our Representatives who need to
know the Information for the purpose of evaluating the possible Transaction,
who are informed by us of the confidential nature of the Information and who
shall agree to act in accordance with the
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terms and conditions of this agreement. We shall be responsible for any breach
of this agreement by our Representatives.
Without your prior written consent, except as required by law (as advised
by counsel), and in which case prior notice will be given to you, we and our
Representatives will not disclose to any person the fact that the Information
has been made available, that discussions or negotiations are taking place or
have taken place concerning a possible Transaction involving us and Square
Industries, Inc. (the "Company") or any of the terms, conditions or other facts
with respect to any such possible Transaction, including the status thereof.
The term "person" as used in this agreement shall be interpreted broadly to
include the media and any governmental representative or authority, company,
partnership, joint venture group, partner, co-venturer, individual or other
entity.
All copies of the Information, except for that portion of the Information
which consists of notes, analyses, compilations, forecasts, studies, memoranda,
other computer-stored data or other documents prepared by us or our
Representatives ("Internal Materials"), will be returned to you immediately
upon your request. In addition, Internal Materials will be kept confidential
for a period of five (5) years from the date hereof. Notwithstanding such
return, we and our Representatives will continue to be bound by our obligations
of confidentiality (including with respect to oral Information) and our other
obligations as provided hereunder.
It is understood that all (i) communications regarding a possible
Transaction, (ii) requests for additional information, (iii) requests for
facility tours or management meetings and (iv) discussions or questions
regarding procedures, will be submitted or directed to The Blackstone Group
L.P. ("Blackstone").
We acknowledge that none of you, Blackstone or your or their
Representatives, makes any express or implied representation or warranty as to
the accuracy or completeness of the Information, and each of you, Blackstone
and your and their Representatives, expressly disclaims any and all liability
that may be based on the Information, efforts therein or omissions therefrom.
We agree that we are not entitled to rely on the accuracy or completeness of
the Information and that any reliance would be as specifically provided in the
definitive agreement, if any, regarding the Transaction.
In the event that we or any of our Representatives are required to
disclose any of the Information pursuant to any applicable law, regulation or
legal process, we will provide you with prompt notice thereof so that you may
seek a protective order or other appropriate remedy and/or waive compliance
with the provisions of this agreement. In the event that such protective order
or other remedy is not obtained, or that the Company waives compliance with the
provisions of this agreement, we will furnish only that portion of the
Information which we are advised by counsel is legally required and will
exercise our reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Information.
We agree that you reserve the right, in your sole and absolute discretion,
to reject any or all proposals, to decline to furnish further information and
to terminate discussions and
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negotiations with us at any time. The exercise by you of these rights shall not
affect the enforceability of any provision of this agreement.
We agree that until the expiration of two (2) years from the date of this
agreement, we shall not, without the prior approval of the Board of Directors
of the Company, (i) in any manner acquire, agree to acquire or make any
proposal to acquire, directly or indirectly, any securities of the Company or
any of its subsidiaries, (ii) propose to enter into, directly or indirectly,
any merger or business combination involving the Company or any of its
subsidiaries or to purchase, directly or indirectly, a material portion of the
assets of the Company or any of its subsidiaries, (iii) make, or in any way
participate, directly or indirectly, in any "solicitation" of "proxies" (as
such terms are defined under Regulation 14A of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) to vote, or seek to advise or influence
any person with respect to the voting of any voting securities of the Company
or any of its subsidiaries, (iv) form, join or in any way participate in a
"group" (within the meaning of Section 13(d) of the Exchange Act and the rules
and regulations thereunder) with respect to any voting securities of the
Company or any of its subsidiaries, (v) otherwise act, alone or in concert with
others, to seek to control or influence the management, Board of Directors or
policies of the Company or any of its subsidiaries, (vi) disclose any
intention, plan or arrangement inconsistent with the foregoing or (vii) advise,
assist or encourage any other persons in connection with any of the foregoing.
We also agree during such period not to (a) request the Company or its
Representatives, directly or indirectly, to amend or waive any provision of
this paragraph (including this sentence) or (b) take any action which might
require the Company to make a public announcement regarding the possibility of
an acquisition, business combination or merger.
Until two (2) years from the date of this agreement, except with the prior
written consent of the Company, we agree not to, and will direct our
Representatives not to, (a) based on the Information hold any discussions with
lessors, property owners, suppliers, customers and/or any other person with
whom the Company or any of its subsidiaries have a relationship regarding the
Company or any of its subsidiaries for the purpose of negotiating or executing
a lease or management contract with respect to any parking facility or property
to include a parking facility which facility or property is included in the
Information or (b) solicit for hire any of the executive officers or
management-level employees of the Company or any of its subsidiaries.
We hereby acknowledge that we are aware, and that we will advise our
Representatives who are furnished Information, that securities laws prohibit
any person who has received from an issuer material, non-public information
concerning the matters which are the subject of this agreement from purchasing
or selling securities of such issuer or from communicating such information to
any other person.
We understand and agree that no failure or delay by you or your
Representatives in exercising any right, power or privilege hereunder shall
operate as a waiver hereof nor shall any single or partial exercise thereof
preclude any other or further exercise of any right, power or privilege
hereunder. We acknowledge that remedies at law may be inadequate to protect
against breach of this agreement, and we hereby in advance agree to the
granting of specific performance and/or injunctive relief in your favor without
proof of actual damage without the
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Company being required to post any bond or any security. Such relief shall not
be deemed to be the exclusive relief for a breach by us or our Representatives
of this agreement but shall be in addition to all other remedies available to
you at law or equity. In addition, in the event that any portion of this
agreement shall be held to be invalid or unenforceable for any reason, it is
hereby agreed that such invalidity or unenforceability shall not affect the
other portions of this agreement.
We hereby confirm that we are not acting as a broker for or a
representative of any person and are considering the Transaction only for our
own account. Any assignment of this agreement by us without your prior written
consent shall be void.
Except as otherwise provided herein, the terms and provisions of this
agreement will terminate three years from the date hereof.
We agree that this agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York. We hereby
irrevocably consent to the exclusive jurisdiction of the federal and state
courts located in the City of New York (and appellate courts therefrom) for any
actions or proceedings arising out of or relating to this agreement,
irrevocably waive any objection to the venue of any such action or proceeding
in any such court and unconditionally waive any objection that such action or
proceeding has been brought in an inconvenient forum and agree not to plead or
claim the same.
Please confirm your agreement with the foregoing, by signing and returning
to the undersigned the duplicate copy of this agreement enclosed herewith.
Very truly yours,
Central Parking Corp.
By:
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Name: Monroe J. Carell, Jr.
Title: Chairman and CEO
Accepted:
Square Industries, Inc.
By:
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Name:
Title:
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