May 30, 2002
SBI Holdings
0000 Xxxx Xxxxxxxxxx Xxxxxxx
Xxxx Xxxx Xxxx, XX 00000
CONFIDENTIALITY AGREEMENT
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Dear Ty:
In connection with your interest in a merger or acquisition (the
"Transaction") involving Lante Corporation (together with its subsidiaries, the
"Company"), you and the Company will be exchanging certain information relating
to the Company, you and/or the Transaction. By our mutual agreement, the terms
and conditions hereof shall apply when one of us ("Discloser") discloses any
such information to the other ("Recipient"). All such information (whether
written or oral) furnished (whether before or after the date hereof) by
Discloser or by the directors, officers, employees, affiliates, representatives
(including, without limitation, financial advisors, attorneys and accountants)
agents or, if applicable, its potential sources of financing for the Transaction
(collectively, "Representatives") of Discloser to Recipient or its
Representatives and all copies, analyses, compilations, forecasts, studies or
other documents prepared by Recipient or its Representatives in connection with
its or their review of, or its interest in, the Transaction which contain or
reflect any such information is hereinafter referred to as the "Information".
The term Information will not, however, include information which (i) is or
becomes publicly available other than as a result of a disclosure by Recipient
or its Representatives or (ii) is or becomes available to Recipient on a
nonconfidential basis from a source which, to the best of its knowledge after
due inquiry, is not prohibited from disclosing such information to Recipient by
a legal, contractual or fiduciary obligation to Discloser.
Accordingly, the parties hereby agree that:
1. Recipient and its Representatives (i) will keep the Information
confidential and will not (except as required by applicable law,
regulation or legal process, and only after compliance with
paragraph 3 below), without Discloser's prior written consent,
disclose any Information in any manner whatsoever, and (ii) will not
use any Information other than in connection with the Transaction;
PROVIDED, HOWEVER, that Recipient may reveal the Information to its
Representatives (a) who need to know the Information for the purpose
of evaluating the Transaction, (b) who are informed by Recipient of
the confidential nature of the Information and (c) who agree to act
in accordance with the terms of this letter agreement. Recipient
will cause its Representatives to observe the terms of this letter
agreement, and Recipient will be responsible for any breach of this
letter agreement by any of its Representatives.
SBI Holdings
Page 2
2. Recipient and its Representatives will not (except as required by
applicable law, regulation or legal process, and only after
compliance with paragraph 3 below), without Discloser's prior
written consent, disclose to any person the fact that the
Information exists or has been made available. In addition, the
parties agree that they will not (except as required by applicable
law, regulation or legal process, and only after compliance with
paragraph 3 below), without the other's prior written consent,
disclose to any person the fact that Discloser or Recipient is
considering the Transaction or any other transaction, or that
discussions or negotiations are taking or have taken place
concerning the Transaction or involving the parties or any term,
condition or other fact relating to the Transaction or such
discussions or negotiations, including, without limitation, the
status thereof. Recipient shall promptly advise Discloser in writing
if it learns of any violation of this letter agreement, and shall
cooperate with Discloser in every reasonable way to help regain
possession of any Information improperly disclosed, and to otherwise
prevent further violations of this letter agreement.
3. In the event that Recipient or any of its Representatives are
requested pursuant to, or required by, applicable law, regulation or
legal process to disclose any of the Information, Recipient will (i)
promptly notify Discloser in writing so that Discloser may seek a
protective order or other appropriate remedy or, in Discloser's sole
discretion, waive compliance with the terms of this letter agreement
in such instance, and (ii) provide reasonable cooperation and
assistance to Discloser in opposing or limiting the compelled or
required disclosure. In the event that no such protective order or
other remedy is obtained, or that the Discloser waives compliance
with the terms of this letter agreement in such instance, Recipient
will furnish only that portion of the Information which Recipient is
advised by counsel is legally required and will exercise all
reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Information.
4. If Recipient determines not to proceed with the Transaction,
Recipient will promptly inform Discloser (provided that if Discloser
is the Company, Recipient will inform one of the Company's
Representatives, Xxxxxxx Xxxxx & Company, L.L.C. ("Xxxxx")), of that
decision and, in that case, and at any time upon request of the
Discloser or any of its Representatives, Recipient will either (i)
promptly destroy all copies of the written Information in
Recipient's or its Representatives' possession and confirm such
destruction to Discloser in writing or (ii) promptly deliver to the
Discloser at Recipient's own expense all copies of the written
Information in Recipient's or its Representatives' possession. Any
oral Information will continue to be subject to the terms of this
letter agreement.
SBI Holdings
Page 3
5. Recipient acknowledges that neither the Discloser, nor its
Representatives (including, in the case of the Company's
Representatives, Xxxxx and its affiliates), nor any of Discloser's
or its Representatives' officers, directors, employees, agents or
controlling persons within the meaning of Section 20 of the
Securities Exchange Act of 1934, as amended, makes any express or
implied representation or warranty as to the accuracy or
completeness of the Information, and Recipient agrees that no such
person will have any liability relating to the Information or for
any errors therein or omissions therefrom. Recipient further agrees
that it is not entitled to rely on the accuracy or completeness of
the Information and that Recipient will be entitled to rely solely
on such representations and warranties as may be included in any
definitive agreement with respect to the Transaction, subject to
such limitations and restrictions as may be contained therein.
6. Recipient is aware, and it will advise Recipient's Representatives
who are informed of the matters that are the subject of this letter
agreement, of the restrictions imposed by the United States
securities laws on the purchase or sale of securities by any person
who has received material, non-public information from the issuer of
such securities and on the communication of such information to any
other person when it is reasonably foreseeable that such other
person is likely to purchase or sell such securities in reliance
upon such information.
7. You agree that, for a period of one year from the date of this
letter agreement, neither you nor any of your affiliates will,
without the prior written consent of the Company or its Board of
Directors: (i) acquire, offer to acquire, or agree to acquire,
directly or indirectly, by purchase or otherwise, any voting
securities or direct or indirect rights to acquire any voting
securities of the Company or any subsidiary thereof, or any
successor to or person in control of the Company, or any assets of
the Company, or any subsidiary or division thereof or of any such
successor or controlling person, (ii) make, or in any way
participate in, directly or indirectly, any "solicitation" of
"proxies" (as such terms are used in the rules of the Securities
Exchange Commission) to vote, or seek to advise or influence any
person or entity with respect to the voting of, any voting
securities of the Company, (iii) make any public announcement with
respect to, or submit a proposal for, or offer of (with or without
conditions) any extraordinary transaction involving the Company or
its securities or assets, or (iv) form, join or in any way
participate in a "group" (as defined in Section 13 (d)(3) of the
Securities Exchange Act of 1934, as amended) in connection with any
of the foregoing. You will promptly advise the Company of any
inquiry or proposal made to you with respect to any of the
foregoing.
8. You agree that, for a period of one year from the date of this
letter agreement, you will not, directly or indirectly, solicit for
employment or hire any employee of the
SBI Holdings
Page 4
Company or any of its subsidiaries with whom you have had contact or
who became known to you in connection with your consideration of the
Transaction; PROVIDED, HOWEVER, that the foregoing provision will
not prevent you from employing any such person who contacts you on
his or her own initiative without any direct or indirect
solicitation by or encouragement from you.
9. You agree that all (i) communications regarding the Transaction,
(ii) requests for additional information, facility tours or
management meetings and (iii) discussions or questions regarding
procedures with respect to the Transaction, will be first submitted
or directed to Xxxxx and not to the Company. You acknowledge and
agree that (a) we and our Representatives are free to conduct the
process leading up to a possible Transaction as we and our
Representatives, in our sole discretion, determine (including,
without limitation, by negotiating with any prospective buyer and
entering into a preliminary or definitive agreement without prior
notice to you or any other person), (b) we reserve the right, in our
sole discretion, to change the procedures relating to our
consideration of the Transaction at any time without prior notice to
you or any other person, to reject any and all proposals made by you
or any of your Representatives with regard to the Transaction, and
to terminate discussions and negotiations with you at any time and
for any reason and (c) unless and until a written definitive
agreement concerning the Transaction has been executed and
delivered, neither we nor any of our Representatives will have any
liability to you with respect to the Transaction, whether by virtue
of this letter agreement, any other written or oral expression with
respect to the Transaction or otherwise.
10. The parties acknowledge that remedies at law may be inadequate to
protect them against any actual or threatened breach of this letter
agreement by the other party or by the other party's
Representatives, and, without prejudice to any other rights and
remedies otherwise available to the aggrieved party, the parties
agree to the granting of injunctive relief in favor of the aggrieved
party without proof of actual damage. In the event of litigation
relating to this letter agreement, if a court of competent
jurisdiction determines in a final order that this letter agreement
has been breached by a party or by its Representatives, then the
breaching party will reimburse the aggrieved party for the aggrieved
party's costs and expenses (including, without limitation, legal
fees and expenses) incurred in connection with all such litigation.
11. The parties agree that no failure or delay by a party in exercising
any right, power or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right,
power or privilege hereunder.
SBI Holdings
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12. This letter agreement will be governed by and construed in
accordance with the laws of the State of Illinois applicable to
contracts between residents of that State and executed in and to be
performed in that State, without giving effect to principles of
conflicts of law. All lawsuits regarding this letter agreement must
be brought in a court of general jurisdiction located in Xxxx
County, Illinois, and the parties hereby consent and submit to
personal jurisdiction and venue in such courts.
13. This letter agreement shall govern all Information received during
the period from the date of this agreement to the date on which
either party receives from the other written notice that subsequent
communications shall not be so governed. The obligations of
confidentiality under paragraphs 1 and 2 of this letter agreement
shall expire five years from the date of this letter agreement.
14. Any notice required to be given under this letter agreement shall be
deemed received upon personal delivery or confirmed facsimile
delivery, and one business day after having been sent by overnight
courier.
15. This letter agreement contains the entire agreement between you and
us concerning the confidentiality of the Information and supersedes
all prior written and oral communications and agreements relating to
the subject matter hereof. No modifications of this letter agreement
or waiver of the terms and conditions hereof will be binding upon
you or us, unless approved in writing by each of you and us.
SBI Holdings
Page 6
Very truly yours,
LANTE CORPORATION
BY: XXXXXXX XXXXX & COMPANY, L.L.C.
ON BEHALF OF LANTE CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Principal
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Acknowledged, agreed and accepted:
SBI HOLDINGS
By: /s/ Xx X. Xxxxxxxxx
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Name: Xx X. Xxxxxxxxx
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Title: Executive Vice-president
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Corporate Development
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Date: 6-3-02
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