EXHIBIT 99(c)(3)
CONFIDENTIALITY AGREEMENT
Xxxxxx Xxxxxxxxx Xxxxxx & Co.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
You have advised us that you are acting on behalf of Blessings
Corporation (together with its subsidiaries, "Blessings" or the "Company") in
its consideration of a possible sale, and you have agreed to discuss with us the
possible purchase of Blessings. As a condition to such discussions, you have
required that we agree to keep strictly confidential all information conveyed to
us regarding this matter.
This letter will confirm our agreement with you and Blessings to retain
in strict confidence all information (whether oral or written) conveyed to us
by Blessings, its agents, or you regarding the Company ("Confidential
Information"), unless such information (i) is or hereafter becomes publicly
available, (ii) was known to us, without any direct or indirect obligation of
confidentiality, prior to your disclosure, (iii) is or becomes available to
us on a nonconfidential basis from a source other than you, Blessings or its
agents, provided that, to our knowledge, such other source is not bound by a
confidentiality agreement with you or Blessings, or (iv) is independently
developed or created by us without use of Confidential Information. We will
use such Confidential Information only in connection with our consideration
of whether to purchase Blessings and will not otherwise use it in our
business or disclose it to others, except that we shall have the right to
communicate the Confidential Information to such of our directors, officers,
employees, legal, accounting, and financial advisors and potential financing
sources (including, without limitation, potential sources of equity
financing) who need to have knowledge thereof, provided that each such person
is informed that such information is strictly confidential and subject to
this agreement and agrees not to disclose or use such information except as
provided herein. We hereby agree to be jointly and severally responsible for
any breach of this agreement by our officers, directors, advisors and/or
employees or any of our representatives. In the event that we become legally
compelled by deposition, subpoena, or other court or governmental action to
disclose any of the Confidential Information covered by this agreement, we
shall provide Blessings with prompt prior written notice to that effect, and
we will cooperate reasonably with Blessings if it seeks to obtain a
protective order concerning such confidential information.
We agree not to initiate contact, or engage in discussion, with any
employee, customer, or supplier of Blessings without the express prior
consent of you or the Company with regard to this transaction, provided,
however, contact with customers or suppliers for the ordinary course of
business shall not be within the scope of this agreement. Unless we purchase
Blessings, we agree not to solicit for employment any employees of Blessings
whom we learn of or come in contact with in the course of our review of the
Company in connection with the possible purchase of Blessings, without the
written consent of the Company, for a period of two years from the date of
this letter. You and Blessings agree that the foregoing restrictions shall
not apply to (i) any solicitation by us directed
CONFIDENTIALITY AGREEMENT
Page 2
to the general public, whether or not the individuals responding to such
solicitation were also employees introduced to us in the course of our review
of Blessings and (ii) our employment of Blessings employees not involving an
initial solicitation by us.
Until the earlier of eighteen months from the date of this letter or the
consummation of a sale of Blessings as contemplated by this letter, we will not
(and will insure that our officers, directors, advisors, and employees will not)
without the prior written approval of the Board of Directors of the Company, (i)
acquire or agree to acquire to make any proposal to acquire directly or
indirectly any securities or property of the Company, or (ii) otherwise act
alone or in concert with others to seek to control or influence the management,
Board of Directors, or policies of the Company.
We acknowledge that neither Blessings nor any of its directors, officers,
employees, stockholders, or agents makes any representation or warranty, express
or implied, as to the accuracy or completeness of such information and that
neither Blessings nor any of its directors, officers, employees, stockholders,
or agents shall have any liability to us as a result of our use of such
information.
We agree that unless and until a definitive agreement between the Company
and us with respect to the acquisition of the Company has been executed and
delivered, neither we nor the Company shall have any legal obligation of any
kind whatsoever with respect to the purchase and sale of the Company by virtue
of this agreement or by virtue of any other written or oral expression with
respect to such transaction. The term "definitive agreement" does not include
an executed letter of intent or other preliminary written agreement. Neither
this provision or any other provision of this agreement can be waived or amended
except by written consent of the Company and us, which consent shall
specifically refer to the provision to be waived or amended.
We also agree that without the prior consent of Blessings, we and our
officers, directors, advisors, and employees will not disclose to any other
person that we have received such information, that we are in discussions or
negotiations with you and Blessings as to a possible purchase of Blessings or
that the Stockholders are contemplating a possible sale of Blessings.
We will advise all of our directors, officers, employees and other
representatives who are informed of the matters which are the subject of this
letter that U.S. securities laws prohibit any person who has material, nonpublic
information concerning an issuer of publicly held securities from purchasing or
selling such securities.
We acknowledge that Blessings reserves the right to reject any or all
offers to acquire the Company. We further acknowledge that the Company reserves
the right to discontinue discussions at any time and to conduct the process for
the sale of the Company as in its sole discretion it shall determine (including,
without limitation, negotiating with any prospective purchasers, and entering
into a definitive agreement without prior notice to us or any other person or to
change any procedures relating to such sale without notice to us or any other
person). We shall have no claim against the Company or any of its directors,
officer, representatives, affiliates, or agents arising out
CONFIDENTIALITY AGREEMENT
Page 3
of or relating to the sale of the Company other than as against them as named
parties to a definitive agreement and only in accordance with the express terms
and conditions thereof.
In the event that we do not purchase Blessings, we agree upon Blessings'
request (i) to return to you all financial and other written Confidential
Information provided to us by Blessings, its agents, or you relating to
Blessings, and (ii) to destroy and certify that we have destroyed any
memoranda, notes, or other writings prepared by us or our representatives
based on such Confidential Information, together with all copies of such
information in our possession or under our control to which we have access.
We agree that neither Blessings nor Xxxxxx Xxxxxxxxx Xxxxxx & Co. shall be
obligated to pay any fees on our behalf to any brokers, finders, or other
parties claiming to represent us in this transaction. Without limiting the
generality of the nondisclosure agreements contained herein above, it is
further understood that we are strictly prohibited by this agreement from
acting as a broker or an agent using any of the confidential information
provided to us.
We acknowledge that unauthorized disclosure of such information would cause
substantial and irreparable damage to the business and competitive position of
the Company, and we agree that the Company shall be entitled to injunctive
relief in the event of any breach or threatened breach of terms of this letter
agreement in addition to such other remedies as may be available at law or
equity. The parties hereto acknowledge that any action or proceeding arising
out of or relating to this letter agreement shall be determined by the United
States District Court for the Eastern District of Virginia and this agreement
shall be interpreted and construed in its entirety in accordance with the laws
of the State of Delaware.
Name: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Company: Huntsman Packaging Corporation
Date: January 22, 1998
