Exhibit (d)(3)
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT (this "Agreement") is dated as of February
26, 2002 and is by and between Lands' End, Inc. (the "Company") and Sears,
Xxxxxxx and Co. ("Sears"). Sears and the Company are sometimes collectively
referred to herein as the "Parties" and individually as a "Party."
W I T N E S S E T H:
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WHEREAS, the Parties desire to exchange information in order to enable them
to evaluate the possibility of entering into a negotiated business transaction
(the "Transaction").
WHEREAS, during the course of any discussions or negotiations regarding the
Transaction, the Company and Sears each from time to time may provide the other
with certain Evaluation Material (as defined below).
WHEREAS, each of the Parties acknowledges and agrees that any Evaluation
Material provided to the other, whether before or after the execution of this
Agreement, is proprietary and highly confidential and that the unrestricted
disclosure of any Evaluation Material by one party would result in substantial
damage to the other, which damage would be irreparable and extremely difficult
to quantify.
WHEREAS, each of the Parties desires to preserve its business operations
and capital structure free from disruption that could arise from the misuse of
Evaluation Material.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties hereto agree as follows:
As used in this Agreement, the term "Exchange Act" means the Exchange Act
of 1934, as amended, and "affiliate" has the meaning set forth in Rule 12b-2 of
the regulations promulgated under the Exchange Act.
1. Evaluation Material. The term "Receiving Party" shall mean a Party that
receives Evaluation Material from the other Party pursuant to this Agreement,
and the term "Disclosing Party" shall mean a Party to this Agreement that
provides or discloses its Evaluation Material to a Receiving Party. As a
condition to the furnishing of Evaluation Material to the partners, directors,
officers, employees, agents or advisors of a Party, including without limitation
attorneys, accountants, consultants, bankers, other sources of financing and
capital and financial advisors (collectively, "Representatives"), each Party
agrees and shall cause its Representatives to treat such information in
accordance with the provisions of this Agreement and to take or abstain from
taking certain other actions hereinafter set forth. The term "Evaluation
Material" means any and all information, in any form or medium, concerning the
Disclosing Party (whether prepared by the Disclosing Party, its advisors or
otherwise and
irrespective of the form of communication and whether it is labeled or otherwise
identified as confidential) that is furnished to the Receiving Party or to its
Representatives by or on behalf of the Disclosing Party. In addition,
"Evaluation Material" shall be deemed to include all notes, analyses, studies,
interpretations and other documents or reports prepared by a Receiving Party or
its Representatives which contain, reflect or are based upon, in whole or part,
the information furnished to the Receiving Party or its Representatives pursuant
hereto. The term "Evaluation Material" does not include information which: (a)
is or becomes available to the public generally (other than as a result of a
disclosure by the Receiving Party or one of its Representatives); (b) becomes
available to the Receiving Party on a non-confidential basis from a source other
than the Disclosing Party or one of its Representatives, provided that such
source is not, to the knowledge of the Receiving Party after reasonable inquiry,
bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to the Disclosing Party or any other
person with respect to such information; or (c) has been independently acquired
or developed by the Receiving Party without violating any of its obligations
under this Agreement, as demonstrated by the Receiving Party.
2. Use of Evaluation Material and Confidentiality.
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(a) The Parties hereto agree that a Receiving Party and its Representatives
shall use the Evaluation Materials of the Disclosing Party solely for the
purpose of evaluating the possible Transaction that the Evaluation Material will
be kept confidential and that neither the Receiving Party nor any of its
Representatives will disclose any of the Evaluation Material in any manner
whatsoever; provided however that the Receiving Party may disclose Evaluation
Material: (i) to such of its Representatives who need such information for the
sole purpose of evaluating the Transaction (it being understood that such
Representatives shall be informed by the Receiving Party of the confidential
nature of such information and shall be directed by the Receiving Party to treat
such information as confidential); and (ii) in all other cases, only if and to
the extent that the Disclosing Party gives its prior written consent to such
disclosure.
(b) The Parties hereto agree that each will be fully responsible for any
breach of any of the provisions of this Agreement by any of its Representatives.
(c) Each of the Parties hereto agrees that, without the prior written
consent of the other Party, such Party and its Representatives shall not
disclose to any person the fact that the Evaluation Material has been made
available to it/them, the fact that discussions or negotiations are taking place
concerning a possible transaction between the Parties or the existence of this
Agreement; provided however that each of the Parties may make such disclosure as
it determines in good faith and upon the advice of counsel is required by law or
applicable stock exchange rule or regulation (in which event such Party shall
use all reasonable efforts to consult with the other Party in advance regarding
the nature, extent and form of such disclosure).
(d) The Parties hereto agree that, without the prior written consent of the
Disclosing Party, neither the Receiving Party nor any of its Representatives
will disclose to any other person (including, without limitation, by issuing a
press release or otherwise making any public statement) any of the terms,
conditions or other facts with respect to the Transaction (including the status
thereof); provided however that the Receiving Party may make such
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disclosure as it determines in good faith and upon the advice of counsel is
required by law (in which event such Party shall use all reasonable efforts to
consult with the Disclosing Party in advance regarding the nature, extent and
form of such disclosure).
(e) The terms "person" as used in this Agreement shall be interpreted
broadly to include the media and any corporation, group, individual or other
entity.
(f) If the Receiving Party or any of its Representatives are requested or
required (by oral questions, interrogatories, requests for information or other
documents in legal proceedings, subpoena, civil investigative demand or any
other similar process) to disclose any of the Evaluation Material, such Party
shall provide the Disclosing Party with prompt written notice of any such
request or requirement so that the Disclosing Party may seek a protective order
or other appropriate remedy or waive compliance with the provisions of this
Agreement. If the Disclosing Party waives compliance with the provisions of this
Agreement with respect to a specific request or requirement, the Receiving Party
and its Representatives shall disclose only that portion of the Evaluation
Material that is covered by such waiver and which is necessary to disclose in
order to comply with such request or requirement. If, in the absence of a
protective order or other remedy or a waiver by the Disclosing Party, the
Receiving Party or one of its Representatives is nonetheless legally compelled
to disclose any Evaluation Material, the Receiving Party or such Representative
may, without liability hereunder, disclose only that portion of the Evaluation
Material that is so required to be disclosed. Notwithstanding the foregoing, in
the event that the Receiving Party or one of its Representatives discloses
Evaluation Material under the terms of this subsection, such Party and its
Representatives shall exercise commercially reasonable efforts to preserve the
confidentiality of the Evaluation Material including, without limitation, and to
the extent practical under the circumstances, by cooperating with the Disclosing
Party to obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the Evaluation Material.
(g) If either Party hereto decides that it does not desire to proceed with
the Transaction, then upon the written request of the Disclosing Party, the
Receiving Party shall deliver promptly to the Disclosing Party all Evaluation
Material furnished to it or any of its Representatives by or on behalf of the
Disclosing Party, together with copies of such Evaluation Material in the
Receiving Party's possession or control or in the possession or control of any
of its Representatives. If either Party hereto decides that it does not desire
to proceed with the Transaction, the Receiving Party hereby agrees upon the
written request of the Disclosing Party to promptly destroy all Evaluation
Material prepared by it or any of its Representatives, together with all copies
thereof (including, without limitation, electronic copies). Notwithstanding the
return or destruction of the Evaluation Material, the Receiving Party and its
Representatives will continue to be bound by its obligations of confidentiality
hereunder.
3. Accuracy of Evaluation Material. Each Party hereto understands and
acknowledges that neither the Disclosing Party nor any of its Representatives
makes any representation or warranty, express or implied, as to the accuracy or
completeness of any Evaluation Material. Each Party hereto agrees that neither
the Disclosing Party nor any of its Representatives shall have any liability to
the Receiving Party or to any of its Representatives
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relating to or resulting from the use of the Evaluation Material or any errors
therein or omissions therefrom. Only those representations and warranties that
are made in a final definitive agreement regarding the Transaction, when, as and
if executed, and subject to such limitations and restrictions as may be
specified therein, will have any legal effect.
4. Diligence Process. In consideration of the provision of the Evaluation
Material to the Receiving Party, such Party agrees and shall cause its
Representatives not to initiate or maintain contact with any officer, director,
employee or agent of the Disclosing Party relating to the Transaction, except in
accordance with guidelines that are mutually established by the Parties. Each
Party hereby agrees to submit or direct to the designee or designees of the
other Party all: (a) communications regarding the Transaction; (b) requests for
additional information; (c) requests for facility tours or management or
employee meetings; and (d) discussions or questions regarding procedures.
5. Non-Solicitation and Non-Hire of Employees. Each Party acknowledges that
the employees of the other Party are a key component to the success of the other
Party and that the preservation of the employee base of the other Party is
critical to among other things the prospects of the other Party. Consequently,
the Parties have agreed to the following mutual non-solicitation and non-hire
provisions. Each Party hereto agrees that, for a period of one year from the
date hereof, such Party shall not solicit any individual who is an employee of
the other Party, as of the date hereof or at any time hereafter and prior to the
termination of discussions by the Parties with respect to a Transaction, to
leave his or her employment with such other Party or in any way interfere with
the employment relationship between such other Party and any of its employees;
provided that this restriction shall not apply to (i) any part-time employee or
(ii) any employee who as of the date hereof has already entered into employment
discussions with such Party or contacted such Party to initiate such
discussions; provided further that generalized employee searches (not focused
specifically on the employees of a Party) by headhunter/search firms and
generalized employment or trade media advertisements shall not be deemed to
cause a breach of this non-solicitation restriction. Each Party hereto also
agrees that, for a period of one year from the date hereof, such Party shall not
hire or otherwise engage any individual who is an employee of the other Party as
of the date hereof or at any time hereafter and prior to the termination of
discussions by the Parties with respect to a Transaction; provided that this
restriction shall not apply to (i) any part-time employee, (ii) any employee who
as of the date hereof has already entered into employment discussions with such
Party or contacted such Party to initiate such discussions or (iii) any employee
who (x) is not an officer of Sears or is not an employee of the Company with the
title of director or greater (which includes without limitation the officers of
the Company) as the case may be and (y) was not introduced to the respective
Party or did not become known to the respective Party in connection with its
evaluation or the consummation of a Transaction.
6. Standstill. Each Party hereby acknowledges that the Evaluation Material
is being furnished to it in consideration of its agreement that for a period of
1.5 years from the date hereof such Party will not (and such Party will not
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 Board of Directors of the
other Party: (i) acquire or agree, offer, seek or propose to acquire (or request
permission to do so), ownership (including, but not limited to, beneficial
ownership as defined in Rule 13d-3 under the Exchange
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Act) of any of the assets or businesses of the other Party or any securities
issued by the other Party, or any rights or options to acquire such ownership
(including from a third party), or make any public announcement (or request
permission to make any such announcement) with respect to any of the foregoing;
(ii) seek or propose to influence or control the management or the policies of
the other Party or to obtain representation on the Board of Directors of the
other Party, or solicit, or participate in the solicitation of, any proxies or
consents with respect to any securities of the other Party, or make any public
announcement with respect to any of the foregoing or request permission to do
any of the foregoing; (iii) take any action which might require the other Party
to make a public announcement regarding the types of matters set forth in (i)
and (ii) above in this sentence; (iv) enter into any discussions, negotiations,
arrangements or understandings with any third party with respect to any of the
foregoing; or (v) seek to have the other Party amend or waive any provision of
this Section; provided that the foregoing shall not prohibit any Sears employee
pension fund or trust (a "Sears Fund") from acquiring any equity securities of
the Company so long as (x) such acquisition is in the ordinary course of
business and consistent with past practice of such fund or trust and not with
the intention of obtaining or exercising control over the Company, (y) such fund
or trust does not directly or indirectly beneficially own (including, but not
limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange
Act) 5 or more percent of any equity security of any class of the Company and
(z) such acquisition does not cause or in any way result in any obligation or
requirement of either Party to make any disclosure contemplated to be prohibited
by this Agreement, including pursuant to section 2(c), without taking into
account any exception for disclosure required by law or by any applicable stock
exchange rules and regulations. Each Party represents to the other Party that
neither it nor any of its affiliates (other than in the case of Sears any Sears
fund) owns (including, but not limited to, beneficial ownership as defined in
Rule 13d-3 under the Exchange Act) any securities issued by the other Party as
of the date hereof.
7. Remedies. It is understood and agreed that money damages would not be a
sufficient remedy for any breach of this Agreement by any Party hereto or any of
such Party's Representatives and that the non-breaching Party be entitled to
seek equitable relief, including injunction and specific performance, as a
remedy of such breach. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Agreement, but shall be in addition to all other
remedies available at law or equity to the non-breaching Party. In the event of
litigation relating to this Agreement, if a court of competent jurisdiction
determines that a Party or any of its Representatives has breached this
Agreement, or if a Party does not prevail in any such action, such breaching or
non-prevailing Party shall be liable for and pay to the other Party on demand
the reasonable legal fees and expenses incurred by the non-breaching or
prevailing Party in connection with such litigation, including any appeal
therefrom.
8. Waivers and Amendments. No failure to delay by either party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder. No alteration, waiver, amendment, change or supplement hereto shall
be binding or effective unless the same is set forth in writing signed by a duly
authorized representative of each Party and may be modified or waived only by a
separate letter executed by each party expressly so modifying or waiving this
Agreement.
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9. Notices. All notices, requests, demands, claims and other communications
hereunder will be in writing. Any notice, request, demand, claim or other
communication hereunder shall be deemed duly given if (and then one business day
after) it is sent by overnight courier via a national courier service and
addressed to the intended recipient as set forth on the signature page attached
hereto. Any Party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth on
the signature page attached hereto using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex, ordinary mail
or electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any Party may change the address
to which notices, requests, demands, claims and other communications hereunder
are to be delivered by giving the other Parties notice in the manner herein set
forth.
10. Choice or Law/Consent to Jurisdiction. The validity, interpretation,
performance and enforcement of this Agreement shall be governed by the laws of
the State of Delaware without regard to the conflicts of laws principles
thereof. Each Party hereby irrevocably and unconditionally consents to the
jurisdiction of the federal and state courts in the State of Wisconsin or
Illinois for any action, suit or proceeding arising out of or related hereto.
Each Party hereto further hereby irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of or relating to this Agreement in the federal and state courts of the State of
Wisconsin or Illinois, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in any inconvenient forum.
11. Severability. If any provision or portion of this Agreement should be
determined by any court or agency of competent jurisdiction to be invalid,
illegal or unreasonable, in whole or in part in any jurisdiction, and such
determination should become final, such provision or portion shall be deemed to
be severed in such jurisdiction, but only to the extent required to render the
remaining provisions and portions of this Agreement enforceable, and this
Agreement as thus amended shall be enforced in such jurisdiction to give effect
to the intention of the parties insofar as that is possible, and further, the
Agreement shall continue without amendment in full force and effect in all other
jurisdictions. In the event of any such determination, the parties shall
negotiate in good faith to modify this Agreement to fulfill as closely as
possible the original intents and purposes hereof.
12. Construction; Affiliates. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. For purposes of
Section 1 through and including Section 7 hereof, reference to a Party shall
also include the affiliates of such Party and each of the Parties hereto will be
responsible for any breach of any of the provisions of this Agreement by their
respective affiliates.
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13. Counterparts. For the convenience of the Parties, any number of
counterparts of this Agreement may be executed by the Parties hereto. Each such
counterpart shall be, and shall be deemed to be, an original instrument, but all
such counterparts taken together shall constitute one and the same Agreement. A
facsimile copy of this Agreement or any signatures hereon shall be considered as
originals for all purposes.
14. Successors and Assigns. The benefits of this Agreement shall inure to
the respective successors and assigns of the Parties hereto, and the obligations
and liabilities assumed in this Agreement by the Parties hereto shall be binding
upon their respective successors and assigns.
15. Headings. The headings to the Sections and subsections contained herein
are for identification purposes only and are not to be construed as part of this
Agreement.
16. Entire Agreement. This Agreement embodies the entire agreement and
understanding of the Parties hereto and supersedes any and all prior agreements,
arrangements and understandings relating to the matters provided for herein.
17. Miscellaneous. Nothing in this Agreement shall prohibit (except as
expressly limited hereby) the Receiving Party or any of its subsidiaries from
continuing or entering into a business of the type engaged in by the Disclosing
Party, either by internal growth or acquisitions, in any location. This
Agreement shall become effective as of the date first above written and shall
continue in effect for a term of 3 years.
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Confidentiality Agreement to be executed by their duly authorized officers as of
the day and year first written above.
LANDS' END, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Vice President and Senior Legal Officer
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Address:
Xxx Xxxxx' Xxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
SEARS, XXXXXXX AND CO.
By: /s/ X. Xxxxxxx Will
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Name: X. Xxxxxxx Will
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Title: Vice President, Business Development
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Address:
0000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
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