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EXHIBIT (c)(5)
February 2, 1998
International Home Foods, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In order to allow you to evaluate the possible acquisition (the
"Proposed Acquisition") of Grain Grinder Co. (the "Company"), we will deliver to
you, upon your execution and delivery to us of this letter agreement, certain
information about the properties and operations of the Company. All information
about the Company furnished by us or our affiliates, or our respective
directors, officers, employees, agents or controlling persons (such affiliates
and other persons collectively referred to herein as "Representatives"), whether
furnished before or after the date hereof, and regardless of the manner in which
it is furnished, is referred to in this letter agreement as "Proprietary
Information." Proprietary Information does not include, however, information
which (a) is or becomes generally available to the public other than as a result
of a disclosure by you or your Representatives, (b) was available to you on a
nonconfidential basis prior to its disclosure by us or (c) becomes available to
you on a nonconfidential basis from a person other than us who is not otherwise
bound by a confidentiality agreement with us or our Representatives, or is not
otherwise prohibited from transmitting the information to you. As used in this
letter, the term "person" shall be broadly interpreted to include, without
limitation, any corporation, company, partnership and individual.
Unless otherwise agreed to in writing by us, you agree (a) except as
required by law, to keep all Proprietary Information confidential and not to
disclose or reveal any Proprietary Information to any person other than those
employed by you or on your behalf who are actively and directly participating in
the evaluation of the Proposed Acquisition or who otherwise need to know the
Proprietary Information for the purpose of evaluating the Proposed Acquisition
and to cause those persons to observe the terms of this letter agreement and (b)
not to use Proprietary Information for any purpose other than in connection with
the consummation of the Proposed Acquisition in a manner which we have approved.
You will be responsible for any breach of the terms hereunder by you or the
persons referred to in clause (a) of this paragraph. In the event that you are
requested pursuant to, or required by, applicable law or regulation or by legal
process to disclose any Proprietary Information, you agree that you will provide
us with prompt notice of such request(s) to enable us to seek an appropriate
protective order or other appropriate remedy or waive compliance with the
provisions of this letter. In the event that a protective order or other remedy
is obtained, you
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shall use all reasonable efforts to assure that all Proprietary Information
disclosed will be covered by such order or other remedy. Whether such protective
order or other remedy is obtained or we waive compliance with the provisions of
this letter, you will disclose only that portion of the Proprietary Information
you are legally required to disclose.
Unless otherwise required by law or stock exchange rule, neither you
nor your Representative will, without our prior written consent, disclose to any
person (other than those actively and directly participating in the Proposed
Acquisition) any information about the Proposed Acquisition or the terms,
conditions or other facts relating thereto, including the fact that discussions
are taking place with respect thereto or the status thereof, or the fact that
the Proprietary Information has been made available to you.
If within 30 days of the date of this letter a letter of intent or a
definitive acquisition agreement has not been executed or if you determine
sooner that you do not wish to proceed with the Proposed Acquisition, you will
promptly advise us of that decision. In either case, or in the event that the
Proposed Acquisition is not consummated by you, you will, upon our request,
promptly deliver to us all of the Proprietary Information, including all copies,
reproductions, summaries, analyses or extracts thereof or based thereon in your
possession or in the possession of any of your Representatives.
Although the Proprietary Information contains information which we
believe to be relevant for the purpose of your evaluation of the Proposed
Acquisition, we do not make any representation or warranty as to the accuracy or
completeness of the Proprietary Information. Except as may be set forth in the
definitive acquisition agreement, neither we, our affiliates, nor any of our
respective officers, directors, employees, agents or controlling persons within
the meaning of Section 20 of the Securities Exchange Act of 1934 shall have any
liability to you or any of your Representatives relating to or arising from the
use of the Proprietary Information.
Without prejudice to the rights and remedies otherwise available to us,
we shall be entitled to equitable relief by way of injunction if you or any of
your Representatives breach or threaten to breach any of the provisions of this
letter agreement.
It is further understood and agreed that no failure or delay by us 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
further exercise thereof or the exercise of any right, power or privilege
hereunder.
This letter shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware.
Any assignment by you of your rights and obligations under this letter
without our prior written consent shall be void.
The covenants and other terms and conditions contained hereon shall
expire 15 years from the date of execution.
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Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
GRAIN GRINDER CO.
By: /s/ XXXX X. XXXXXXXX
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Its: C.E.O.
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Accepted and agreed as of
the date first written above:
INTERNATIONAL HOME FOODS, INC.
By: /s/ XXX XXXXXXXXX
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Its: Senior Vice President
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