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EXHIBIT 99(c)(2)
SMARTFLEX SYSTEMS, INC.
00000 XXXXXXXX XXXXXX
XXXXXX, XXXXXXXXXX 00000-0000
February 3, 1999
Xxxxx Xxxxxxxx
Director of New Business Development
Saturn Electronics & Engineering, Inc.
000 Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Dear Xxxxx:
We have your fax of February 2, 1999 with which you forwarded the
Confidentiality Agreement executed by you on behalf of Xxxxxx. This letter will
supplement the Confidentiality Agreement, which I have signed and am returning
to you with this letter. The enclosed signed counterpart of the Confidentiality
Agreement is subject to your concurrence with the supplemental provision set
forth below, which will be deemed to be added to the Confidentiality Agreement
as if set forth therein:
Each party agrees that, for a period of two (2) years from the
date of this agreement, unless such shall have been specifically
invited in writing by the other party, neither it nor its respective
affiliates (as such term is defined under the Securities Exchange Act
of 1934, as amended (the "1934 Act")) or representatives will, in any
manner, directly or indirectly, (a) effect or seek, offer or propose
(whether publicly or otherwise) to effect, or cause or participate in
or in any way assist any other person to effect or seek, offer or
propose (whether publicly or otherwise) to effect or participate in (i)
any acquisition of any securities (or beneficial ownership thereof) or
assets of the other or any of the other's subsidiaries; (ii) any tender
or exchange offer, merger or other business combination involving the
other or any of the other's subsidiaries; (iii) any recapitalization,
restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the other or any of the other's
subsidiaries; or (iv) any "solicitation" of "proxies" (as such terms
are used in the proxy rules of the Securities and Exchange Commission)
or consents to vote any voting securities of the other; (b) form, join
or in any way participate in a "group" (as defined under the 1934 Act);
(c) otherwise act, alone or in concert with others, to seek to control
or influence the management, Board of Directors or policies of the
other; (d) take any action which might force the other to make a public
announcement regarding any of the types of matters set forth in (a)
above; or (e) enter into any discussions or arrangements with any third
party with respect to any of the foregoing. Each party also agrees
during such period not to request the other (or its directors,
officers, employees or agents), directly or indirectly, to amend or
waive any provision of this paragraph (including this sentence).
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February 3, 1999
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If you agree, please sign a copy of this letter and return it to me, at
which point the Confidentiality Agreement will be fully effective.
Very truly yours,
SMARTFLEX SYSTEMS, INC.
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx,
Chairman, President and CEO
SATURN ELECTRONICS & ENGINEERING, INC.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx,
Director of New Business Development
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Xxxx Xxxxxx
Smartflex Systems Inc.
FAX 000-000-0000
February 2, 1999
Attn.: Xxxx Xxxxxx
RE: Confidentiality Agreement
Dear : Xxxx
In connection with the evaluation of a possible transaction involving
Smartflex Systems Inc. (the "Company") and Saturn Electronics & Engineering,
Inc. ("Saturn"), the Company and Saturn are prepared to furnish to each other
certain confidential and proprietary records and information regarding their
respective businesses. All such records and information, including, but not
limited to, all information or documentation developed, created or acquired by
the receiving party, are hereinafter collectively referred to as "Confidential
Information."
Each party acknowledges and agrees that it is imperative that all
Confidential Information remain confidential. Accordingly, by signing below,
each party agrees to be bound by the terms of this agreement. To maintain the
confidentiality of the Confidential Information, each party agrees:
(1) Not to use or allow the use for any purpose of any Confidential
Information or notes, summaries or other material derived by the receiving party
from the Confidential Information, except to determine whether the parties
desire to enter into a transaction.
(2) Not to disclose or allow disclosure to others of any Confidential
Information or memoranda, notes and other writings prepared by the receiving
party based thereon, except to such persons necessary to enable the receiving
party to determine whether the parties desire to enter into a transaction (it
being understood that such persons who need to know such information for the
purpose of such determination shall be informed by the receiving party of the
confidential nature of such information, shall be directed by the receiving
party to treat such information confidentially and shall be informed that by
receiving such information they are agreeing to be bound by this agreement);
(3) Except copies to such persons necessary to carry out the purpose
stated in (1) above, not to make or allow to be made copies of any Confidential
Information except as the other party may specifically authorize in writing; and
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(4)Not to disclose or allow disclosure to persons that the Confidential
Information has been made available to the receiving party, or that the
receiving party has reviewed any Confidential Information, or that the Company
and Saturn may be considering a transaction or have had, are having or propose
to have any discussions with respect thereto.
For purposes of this agreement, the term "Confidential Information"
shall not include information which (a) becomes generally available to the
public other than as a result of a disclosure by the receiving party, (b) was
available to the receiving party on a non-confidential basis prior to its
disclosure to the receiving party by the other party, or (c) becomes available
to the receiving party on a non-confidential basis from a source other than the
other party when such source is entitled to make the disclosure to the receiving
party.
Either party may elect at any time to terminate further access by the
receiving party to Confidential Information. In such event, or in the event a
transaction is not effected between the Company and Saturn, each party agrees to
promptly upon the request of the other party return all Confidential Information
and to destroy all memoranda, notes and other writings prepared by the receiving
party based thereon. The obligation of the parties to maintain the
confidentiality of the Confidential Information, and to not use the Confidential
Information except as provided in this agreement, shall continue for a period of
two (2) years from the date of this agreement except with regard to any
Confidential Information that, after the date hereof, through no action on the
part of the receiving party, becomes generally available to the public.
Each party further agrees that, without the other party's prior written
consent, that party will not, for a period of eighteen (18) months from the date
hereof, directly or indirectly solicit for employment or employ any person who
is now employed by the other party in an executive or management level position
or otherwise considered a key employee; provided, however, that neither party
shall be prohibited from employing any person who (a) contacts the party on his
or her own initiative, or (b) responds to general advertisement or general
recruiting efforts.
In the event that the receiving party shall be legally compelled to
disclose any Confidential Information or to report any information contained in
any Confidential Information, the receiving party agrees to provide the other
party with prompt written notice of such request or requirement. The other party
may then protest any such disclosure, seek an appropriate protective order,
waive the receiving party's compliance with the provisions of this agreement, or
a combination of the foregoing. It is further agreed that after the provision of
such prompt written notice, if, absent a protective order or the receipt of a
waiver hereunder, the receiving party is in the written opinion of counsel,
compelled to disclose or report information concerning the other party, the
receiving party may disclose or report such information without liability
hereunder; provided, however, that the receiving party shall give the other
party advance written notice of the information to be disclosed or reported.
It is further understood and agreed that no failure or delay by either
party in exercising any rights, powers or privileges hereunder shall operate as
a waiver hereof, nor shall any single or partial exercise of any rights, powers
or privileges preclude any other or further exercise thereof or the exercise of
any right, power or privilege hereunder. Each party agrees that money damages
would not be a sufficient remedy for any breach of this agreement by the other
party,
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and that in addition to all other remedies either party shall be entitled to
specific performance and injunctive or other equitable relief as a remedy for
any such breach.
This agreement shall be governed by and construed in accordance with
the laws of the State of Michigan. This agreement may be amended or modified
only by a written amendment duly executed by the parties. This agreement will
have a term commencing on the date of this letter and ending two (2) years from
the date of this letter.
If you are in agreement with the foregoing, please sign and return one
copy of this letter which shall constitute our agreement with respect to the
subject matter of this letter.
Very truly yours,
SATURN ELECTRONICS & ENGINEERING, INC.
By /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Director of New Business Development
ACCEPTED AND AGREED THIS 2 DAY OF Feb , 1999:
By /s/ Xxxxxxx X. Xxxxxx
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President, Smartflex Systems Inc.
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