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CONFIDENTIALITY AGREEMENT
In connection with considering a possible transaction (a "Transaction")
between our two companies (each party being hereinafter referred to,
collectively with its respective subsidiaries, affiliates and divisions, as a
"Company"), each Company (in its capacity as a provider of information hereunder
being referred to as a "Provider"), may make available to the other Company (in
its capacity as a recipient of information hereunder being referred to as a
"Recipient") from time to time certain information concerning its business,
financial condition, operations, assets and liabilities. As a condition to such
information being provided to each Recipient and its Recipient Representatives
(as hereinafter defined), each Recipient agrees to treat any information
concerning the Provider (whether prepared by the Provider, such Provider's
Representatives (as hereinafter defined), or otherwise and irrespective of the
form of communication) which is furnished hereunder to the Recipient or to such
Recipient's Representatives now or in the future by or on behalf of the Provider
(collectively referred to in this agreement as the "Confidential Information")
in accordance with the provisions of this agreement, and to take or abstain from
taking certain other actions hereinafter set forth. As used in this agreement, a
"Recipient's Representatives" or a "Provider's Representatives" shall include
the directors, officers, employees, agents, partners or advisors of such
Recipient or Provider (including, without limitation, attorneys, accountants,
consultants, bankers and financial advisors).
1. CONFIDENTIAL INFORMATION. The term "Confidential Information" also
shall be deemed to include all notes, analyses, compilations, studies,
interpretations or other documents prepared by either Recipient or such
Recipient's Representatives which contain, reflect or are based upon, in whole
or in part, the information furnished to such Recipient or such Recipient's
Representatives pursuant hereto. The term "Confidential Information" does not
include information which (i) is or becomes generally available to the public
other than as a result of a breach of this agreement by a Recipient or such
Recipient's Representatives, (ii) was within the Recipient's or such Recipient's
Representative's possession prior to its being furnished to the Recipient or
such Recipient's Representatives by or on behalf of the Provider; provided that
the source of such information was not known by the Recipient to be bound by a
confidentiality agreement with, or other contractual, legal or fiduciary
obligation of confidentiality to, the Provider or any other party in relation to
that information, or (iii) is or becomes available to the Recipient or such
Recipient's Representatives on a non-confidential basis from a source other than
the Provider or any of its Representatives, provided that such source is not
known by the Recipient to be bound by a confidentiality agreement with, or other
contractual, legal or fiduciary obligation of confidentiality to, the Provider
or any other party with respect to such information.
2. USE OF CONFIDENTIAL INFORMATION. Each Recipient agrees that such
Recipient and such Recipient's Representatives shall use the Confidential
Information solely for the purpose of evaluating a possible Transaction between
the Companies; that the Confidential Information will be kept confidential; and
that the Recipient will not disclose any Confidential Information in any manner
whatsoever; provided that any of such Confidential Information may be disclosed
to Recipient's Representatives to the extent of their need to know such
information for the sole purpose of assisting the Recipient in the evaluation of
a possible Transaction between the Companies and on the condition that such
Recipient's Representatives are informed by the Recipient of the confidential
nature of such information and that by receiving such information they are
agreeing to be bound by the confidentiality obligations in this agreement. In
any event, each Recipient agrees to be responsible for any breach of this letter
agreement by any of its Recipient's Representatives.
3. NON-DISCLOSURE OF DISCUSSIONS. In addition, each Recipient agrees
that, without the prior written consent of the Provider, such Recipient and such
Recipient's Representatives will not make any public announcement or public
statement concerning, or disclose to any other person, the fact that any
Confidential Information has been made available hereunder, that discussions or
negotiations are taking place concerning a possible Transaction involving the
Companies or any of the terms, conditions or other facts with respect thereto
(including the status hereof); provided that such Recipient may make such public
announcement, public statement or disclosure if in the opinion of such
Recipient's outside counsel or General Counsel, such public announcement, public
statement or disclosure is necessary to avoid committing a violation of law or
of any rule or regulation of any securities association, stock exchange or
national securities quotation system on which such Recipient's securities are
listed or trade. In such event, the Recipient shall use its best efforts to give
advance notice to the Provider and to consult with the Provider on timing and
content of any such public announcement or public statement or disclosure.
4. REQUIRED DISCLOSURE. In the event that either Recipient or any of such
Recipient's Representatives are requested or required (by oral questions,
interrogatories, requests for information or documents in legal proceedings,
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subpoena, civil investigative demand or other similar process) to disclose any
Confidential Information or any of the facts disclosure of which is prohibited
under paragraph (3) of this agreement, such Recipient shall provide the Provider
with prompt written notice of any such request or requirement so that the
Provider may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this agreement. If, in the absence of a
protective order or other remedy or the receipt of a waiver, the Recipient or
any of such Recipient's Representatives are nonetheless, in the opinion of the
Recipient's or (in the case of disclosure requested or required of a Recipient's
Representative) such Recipient's Representative's outside counsel or General
Counsel, legally compelled to disclose Evaluation Material or else stand liable
for contempt or suffer other censure or penalty, such Recipient or such
Recipient's Representatives may, without liability hereunder disclose only that
portion of the Confidential Information which such counsel advises is legally
required to be disclosed; provided that such Recipient shall exercise reasonable
efforts to preserve the confidentiality of the Confidential Information,
including, without limitation, by cooperating with the Provider to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Information.
5. TERMINATION OF DISCUSSIONS. If either Company decides that it does not
wish to proceed with discussions or negotiations relating to a Transaction with
the other, it will promptly notify the other of that decision. In that case, or
at any time upon the request of either party for any reason, each Company will
promptly deliver to the other all Confidential Information (and all copies
thereof) furnished to such Company in its capacity as a Recipient or such
Recipient's Representatives by or on behalf of the other Company in its capacity
as Provider pursuant hereto. In the event of such a decision, all other
Evaluation Material prepared by either Company in its capacity as a Recipient or
such Recipient's Representatives shall, at the Recipient's option, be destroyed
or returned and no copy thereof shall be retained and the Recipient shall
provide to the other Company a certificate of compliance with this sentence.
Notwithstanding the return or destruction of the Evaluation Material, each
Company in its capacity as a Recipient and such Recipient's Representatives will
continue to be bound by such Recipient's respective obligations of
confidentiality and other obligations hereunder for a period of five (5) years
from the date hereof.
6. STANDSTILL. For a period of three (3) years from the date hereof, each
Company agrees that neither it nor any of its affiliates (as defined in Rule
12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) will (nor will it assist, provide or arrange financing to or for others
or encourage others to) directly or indirectly, acting alone or in concert with
others, unless specifically requested in writing in advance by the other
Company's Board of Directors, Chairman or Chief Executive Officer.
A. acquire or agree, offer, seek or propose to acquire, ownership
(including, but not limited to, beneficial ownership as defined in Rule
13d-3 under the Exchange Act) of more than 1% of any class of voting
securities issued by the other Company, or any rights or options to acquire
such ownership (including from a third party);
B. propose a merger, consolidation or similar transaction involving
the other Company;
C. offer, seek or propose to purchase, lease or otherwise acquire all
or a substantial portion of the assets of the other Company;
D. seek or propose to influence or control the management or policies
of the other Company or to obtain representation on the other Company's
Board of Directors, or solicit or participate in the solicitation of any
proxies or consents with respect to the securities of the other Company;
E. enter into any discussions, negotiations, arrangements or
understandings with any third party with respect to any of the foregoing;
or
F. seek or request permission to do any of the foregoing or seek any
permission to make any public announcement with respect to any of the
foregoing.
provided that (i) it is understood that the provisions of this paragraph shall
not prohibit the ongoing discussions continuing to be pursued by the management
of the respective Companies in accordance with the provisions of this agreement,
and (ii) if a Company enters into a definitive agreement with a third party
pursuant to which such third party will make a tender or exchange offer for, or
otherwise acquire (by merger, consolidation, purchase or otherwise) 50% or more
of the common stock or other equity interests, assets or earning power of such
other Company, then the other Company shall be permitted to contact privately
the chairman of the board of directors of such Company (or any person
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designated by such chairman) and submit to such chairman or other person an
offer to acquire Voting Securities or assets of such Company and/or a request to
negotiate with such Company with respect to such offer.
7. NONSOLICITATION. For a period of two (2) years from the date hereof,
each Company agrees that it will not directly or indirectly solicit to employ
any current employee of the other Company; provided, however, that the foregoing
shall not apply to (i) any such employee who has left the employment of the
other Company prior to the commencement of such solicitation, or (ii)
generalized searches for employees by use of advertisements in the media.
8. MISCELLANEOUS. Each Company agrees that unless and until a definitive
agreement between the parties with respect to any transaction has been executed
and delivered, neither Company will be under any legal obligation of any kind
whatsoever with respect to a transaction by virtue of this or any written or
oral expression with respect to such a transaction by any of our respective
Representatives except for the matters specifically agreed to in this agreement.
Each Company further acknowledges that neither Company shall have any obligation
to furnish Confidential Information to the other or to authorize or pursue with
the other any transaction. Each Company acknowledges and agrees that each
reserves the right, in it sole and absolute discretion, to reject any and all
proposals and to terminate discussions and negotiations with the other at any
time subject to the provisions set forth herein. The agreements set forth in
this agreement may be modified or waived only by a separate writing between the
parties hereto.
9. INJUNCTIVE RELIEF. It is further understood and agreed that money
damages would not be a sufficient remedy for any breach of this agreement by
either party or any of its Representatives and that the non-breaching party
shall be entitled to equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies shall not be deemed
to be the exclusive remedies for a breach of this letter agreement but shall be
in addition to all other remedies available at law or equity.
10. NO REPRESENTATION OR WARRANTY. Each Company understands and
acknowledges that neither Company, in its capacity as a Provider, nor such
Provider's Representatives, makes any representation or warranty, express or
implied, as to the accuracy or completeness of the Evaluation Material furnished
by or on behalf of such Provider and shall have no liability to the other
Company in its capacity as a Recipient or to any of such Recipient's
Representatives relating to or resulting from the use of the Evaluation Material
furnished to such Recipient or any errors therein or omissions therefrom. Only
those representations or warranties which are made in a final definitive
agreement regarding any transactions contemplated hereby, when, as and if
executed, and subject to such limitations and restrictions as may be specified
therein, will have any legal effect.
11. COMMONALITY OF INTEREST. To the extent that any Evaluation Material
may include materials subject to the attorney-client privilege, work product
doctrine or any other applicable privilege concerning pending or threatened
legal proceedings or governmental investigations, each Company understands and
agrees that the Companies have a commonality of interest with respect to such
matters and it is the desire, intention and mutual understanding of both
companies that the sharing of such material is not intended to, and shall not,
waive or diminish in any way the confidentiality of such material or its
continued protection under the attorney-client privilege, work product doctrine
or other applicable privilege. All Evaluation Material provided by either
Company that is entitled to protection under the attorney-client privilege, work
product doctrine or other applicable privilege shall remain entitled to such
protection under these privileges, this agreement, and under the joint defense
doctrine.
12. COMPLIANCE WITH SECURITIES LAWS. Each Company, in its capacity as a
Recipient, acknowledges and agrees that such Recipient is aware (and that such
Recipient's Representatives are aware or, upon receipt of any Evaluation
Material, will be advised by such Recipient) of the restrictions imposed by the
Unites States federal securities laws and other applicable foreign and domestic
laws on a person possessing material non-public information about a public
company and that such Recipient and such Recipient's Representatives will comply
with such laws.
13. NO WAIVER. Any forbearance or delay by either party in exercising any
right, power or privilege under the terms of this agreement shall not be
construed as a waiver thereof or of a right thereafter to enforce the same.
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14. NOTICES; CONSENTS. Any notice or consent called for by this agreement
shall be in writing or by means of an electronic communication method which
produces a written record, and shall be sent or transmitted to the respective
parties at the address shown below:
if to ▇▇▇▇▇▇: ▇▇▇▇▇▇ International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
if to RandH: Rohm and ▇▇▇▇ Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
15. SUCCESSORS AND ASSIGNS. This agreement shall inure to the benefit of
the parties hereto and shall be binding upon their respective successors and
assigns.
16. GOVERNING LAW. This agreement shall be governed by Illinois law,
without reference to its conflict of laws principles.
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IN WITNESS WHEREOF, the parties have cause this agreement to be executed
and delivered by their duly authorized representatives, this 24th day of
November, 1998.
▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ S. ▇▇▇ ▇▇▇▇▇▇▇
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Name: S. ▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
ROHM AND ▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Chief
Financial Officer
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