Exhibit (d)(6)
CONFIDENTIALITY AGREEMENT
Attention:
In connection with your consideration of a possible negotiated transaction
with BeautiControl Cosmetics (the "Company") involving some or all of its assets
(a "Potential Transaction"), the Company is prepared to make available to you
certain non-public information. As a condition to such information being
furnished to you and your Representatives (as hereinafter defined), you agree to
treat any information concerning the Company (whether prepared by the Company,
its Representatives or otherwise, and irrespective of the form of communication)
which is furnished to you or to your Representatives now or in the future by or
on behalf of the Company (herein collectively referred to as the "Evaluation
Material") in accordance with the provisions of this letter agreement, and to
take or abstain from taking certain other actions as hereinafter set forth. In
addition, you agree to reimburse the Company, upon its written request, for its
reasonable costs incurred in retrieving, copying, and distributing to you the
Evaluation Material. As used in this letter, a party's "Representatives" shall
include the directors, officers, employees, agents, partners, or advisors of
such party (including, without limitation, attorneys, accountants, consultants,
bankers, and financial advisors) and those of such party's parent company,
subsidiaries and affiliates. Notwithstanding any other provision hereof, the
Company reserves the right not to make available hereunder any information, the
provision of which is determined by it, in its sole discretion, to be
inadvisable or inappropriate.
The term "Evaluation Material" also shall be deemed to include all notes,
analyses, compilations, studies, interpretations or other documents prepared by
you or your Representatives which contain, reflect or are based upon, in whole
or in part, the information furnished to you or your Representatives pursuant
hereto. The term Evaluation Material does not include information which (i) is
or becomes generally available to the public other than as a result of a
disclosure by you or your Representatives, (ii) was within your possession
prior to its being furnished to you by or on behalf of the Company pursuant
hereto, provided that the source of such information was not known by you to be
bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to the Company or any other party with
respect to such information or (iii) becomes available to you on a
non-confidential basis from a source other than the Company or any of its
Representatives, provided that such source is not bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company or any other party with respect to such
information.
Except as otherwise provided herein, you hereby agree that you and your
Representatives shall use the Evaluation Material solely for the purpose of
evaluating a Potential Transaction and for no other purpose, that the Evaluation
Material will be kept confidential and that you and your Representatives will
not disclosure any of the Evaluation Material in any manner whatsoever;
provided, however, that, (i) you may
make any disclosure of Evaluation Material to which the Company gives its prior
written consent and (ii) any of Evaluation Material may be disclosed to your
Representatives who need to have such Evaluation Material for the sole purpose
of evaluating a Potential Transaction, who are provided with a copy of this
letter agreement and who agree in writing to be bound by the terms hereof to the
same extend as you. In any event, you agree to undertake reasonable precautions
to safeguard and protect the confidentiality of the Evaluation Material, to
accept responsibility for any breach of this letter agreement by any of your
Representatives, and at your sole expense to take all reasonable measures
(including but not limited to court proceedings) to restrain your
Representatives from prohibited or unauthorized disclosure or uses of the
Evaluation Material.
In addition, except as otherwise provided herein, you agree that, without
the prior written consent of the Company, you and your Representatives will not
disclose to any other person the fact that the Evaluation Material has been made
available to you, that discussions or negotiations are taking place concerning a
Potential Transaction or any of the terms, conditions or other facts with
respect thereto (including the status thereof); provided, however, that you may
make such disclosure if the Company has already done so or you have received
advice of your outside counsel that such disclosure must be made by you in order
that you not commit a violation of law, and further provided, that any such
permitted disclosure shall not affect or impair your obligations of
confidentiality hereunder with respect to the Evaluation Material. It is
understood and agreed that nothing contained herein shall be deemed to inhibit,
impair or restrict your ability or the ability of your Representatives to have
discussions or negotiations with other persons for the purpose of discussing or
negotiating potential financing and/or partnering with or investment in the
Potential Transaction as long as each of such persons agrees in writing to be
bound by the terms of this letter agreement. The term person as used in this
letter agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual or other entity.
In the event that you or any of your Representatives are requested or
required (by oral questions, interrogations, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Evaluation Material, you shall provide
the Company with prompt written notice of any such request or requirement so
that the Company may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this letter agreement. If, in the
absence of a protective order or other remedy or the receipt of a waiver by the
Company, you or any of the Representatives are nonetheless, upon the advice of
counsel, legally compelled to disclose Evaluation Material to any tribunal or
else stand liable for contempt or suffer other censure or penalty, you or your
Representatives may, without liability hereunder, disclose to such tribunal only
that portion of the Evaluation Material which such counsel advises you is
legally required to be disclosed, provided that you exercise your best efforts
to preserve the confidentiality of the Evaluation Material, including, without
limitation, by cooperating with the Company to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Evaluation Material by such tribunal.
-2-
You understand and acknowledge that neither the Company nor any of its
Representatives makes any representation or warranty, express or implied, as to
the accuracy or completeness of its Evaluation material. You agree that neither
the Company nor any of its Representatives shall have any liability to you or to
any of your Representatives relating to or resulting from the use of the
Evaluation Material or any errors therein or omissions therefrom. Only those
representations or warranties which are made in a final definitive agreement
regarding a Potential Transaction, when, as and if executed, and subject to such
limitations and restrictions as may be specified therein, will have any legal
effect.
You acknowledge and agree that you are aware (and that your Representatives
are aware or, upon receipt of any Evaluation Information, will be advised by
you) of the restrictions imposed by the United 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 you and your
Representative will comply with such laws in a manner consistent with your
confidentiality obligations hereunder.
You understand and agree that no contract or agreement providing for a
Potential Transaction or any other transaction involving the Company shall be
deemed to exist between you and the Company unless and until a final definitive
agreement has been executed and delivered. You also agree that unless and until
a final definitive agreement regarding a Potential Transaction has been executed
and delivered, neither the Company nor you will be under any legal obligation of
any kind whatsoever with respect to a Potential Transaction by virtue of this
letter agreement except for the matters specifically agreed to herein. You
further acknowledge and agree that the Company reserves the right, in its sole
discretion, to reject any and all proposals made by you or any of your
Representatives with regard to a Potential Transaction, and to terminate
discussions and negotiations with you at any time. You further understand that
(i) the Company and its Representatives shall be free to conduct any process for
a Potential Transaction, if and as they in their sole discretion shall determine
(including, without limitation, negotiating with any other interested parties
and entering into a definitive agreement therewith without prior notice to you
or any other person, and (ii) any procedures relating to such process or
transaction may be changed at any time without notice to you or any other
person. Neither this paragraph nor any other provision in this agreement can be
waived or amended except by written consent of the Company, which consent shall
specifically refer to this paragraph (or such provision) and explicitly make
such waiver or amendment.
It is understood and agreed that no failure or delay by the company 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.
It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this letter agreement by you or any of your
Representatives and that the Company shall be entitled to equitable relief,
including
-3-
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 by you of
this letter agreement but shall be in addition to all other remedies available
at law or equity to the Company. In the event of litigation relating to this
letter agreement, if a court of competent jurisdiction determines that you or
any of your Representatives have breached this letter agreement, then you shall
be liable and pay to the Company the reasonable legal fees incurred by the
Company in connection with such litigation, including any appeal therefrom.
Please confirm your agreement with the foregoing by having a duly
authorized representative of your organization sign and return one copy of this
letter to the undersigned. This letter agreement may be executed by counterpart
signatures, each of which shall constitute an original but all of which shall
together constitute a single instrument.
Very truly yours,
By: ____________________
Name: __________________
Title: _________________
Accepted and agreed to as of the date first written above:
By: _____________________
By: _____________________
By: /s/ X.X. Xxxxxx
---------------------
Name: X.X. Xxxxxx
Title: Chairman,
Tupperware Corporation
-4-
