Exhibit (c)(4)
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT, dated as of July 1, 1997, is made by and
between Bucyrus International, Inc., a Delaware corporation ("Bucyrus") and
American Industrial Partners ("Advisor").
WHEREAS, Bucyrus has requested that Advisor provide certain information to
Bucyrus and participate in discussions with Bucyrus regarding certain future
business agreements relating to Bucyrus, and
WHEREAS, in order to further such discussions, Advisor has requested access
to certain information concerning Bucyrus and its business, and Bucyrus has
consented to provide such information subject to restrictions on its use and
further disclosure, and
WHEREAS, Advisor recognizes that the information requested and/or provided by
Bucyrus is non-public, confidential and/or proprietary and, in consideration of
its disclosure hereunder, is willing to abide by the restrictions required by
Bucyrus.
NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants
contained herein, and other good and valuable information, the receipt of which
is hereby mutually acknowledged, the parties hereby agree as follows:
1. Advisor agrees to treat all information and materials about Bucyrus
disclosed by Bucyrus during the course of these discussions as confidential, and
to hold all such information and materials ("Confidential Information") in trust
and confidence, exercising no less care in maintaining the security thereof as
Advisor does or would with respect to its own confidential and proprietary
information.
2. Advisor agrees to use Confidential Information only for the purpose of
considering, analyzing and providing information to Bucyrus regarding the
business agreements referenced above.
3. Advisor will limit the disclosure, distribution and discussion of
Confidential Information to those directors, officers, employees and consultants
of Advisor who are (a) directly involved in Advisor's consideration of the
proposed transaction and (b) aware of and subject to Advisor's obligations of
confidentiality hereunder. In the event Advisor or any person to whom Advisor
has disclosed Confidential Information becomes legally compelled to disclose any
Confidential Information, such person will provide Bucyrus with prompt notice of
such requirement so that Bucyrus may seek a protective order or other
appropriate remedy and/or waive compliance with the terms of this agreement. In
the event a protective order or other remedy is
not obtained, or compliance is waived, Advisor agrees that there will be
furnished to the authorities compelling disclosure only such portion of the
Confidential Information as Advisor's counsel shall advise in writing must be
disclosed. Prior to such disclosure, Advisor and Bucyrus will consult and use
all reasonable efforts to agree on the nature, form, timing and content of such
disclosure.
4. Upon the request of Bucyrus, Advisor shall return to Bucyrus all written
Confidential Information, and shall promptly destroy all copies of any analyses,
summaries or extracts prepared by Advisor or for its use containing or
reflecting any Confidential Information. Advisor shall provide a written
affidavit, signed by an officer of Advisor, that all such Confidential
Information has been returned or destroyed.
5. Neither Advisor nor any affiliate of Advisor shall, prior to the third
anniversary date of this agreement, without the prior written consent of
Bucyrus' Board of Directors:
a. effect or propose or make any statement publicly or to the Board of
Directors of Bucyrus with respect to (i) any form of business
combination with, or restructuring or recapitalization of Bucyrus,
(ii) any purchase of securities or assets of Bucyrus, or (iii) any
proposal to seek representation on the Board of Directors of Bucyrus
or otherwise to seek to influence or control the management, Board
of Directors or policies of Bucyrus, or
b. instigate, encourage, join, act in concert with or assist any third
party in doing any of the foregoing, other than as a participant in
a transaction when the Advisor is not the lead participant, not in
control and is not the agent.
6. Advisor acknowledges that it is aware, and that it will advise all
persons who are informed as to the matters which are the subject of this
agreement, that applicable securities laws may prohibit any person who has
received material, non-public information about Bucyrus from purchasing or
selling securities of Bucyrus or from communicating such information to any
other person under circumstances in which it is reasonably forseeable that such
person is likely to purchase or sell such securities.
7. Advisor acknowledges that the disclosure of Confidential Information in
violation of this agreement could cause irreparable injury to Bucyrus, and that
the remedy at law for such breach would be inadequate. Therefore, if Advisor
engages in any act in violation hereof, Bucyrus shall be entitled, in addition
to such other remedies and damages as may be available to it by law or
hereunder, to injunctive or other equitable relief.
8. The parties mutually agree not to disclose the discussions contemplated
by this agreement to any third parties except as and in a form mutually agreed
between the parties, or as explicitly required by law.
9. The term "Confidential Information" does not include:
a. information which was known to Advisor prior to receipt from Bucyrus:
b. information which is now generally available in the public domain, or
which in the future enters the public domain through no fault of Advisor,
but only from such date as such information becomes so available;
c. information which is disclosed to Advisor at any time by a third party
without violation by such party of an independent obligation of
confidentiality (but for a period of two years following the date of this
agreement, Advisor shall, before using or further disclosing information
so obtained, take resonable steps to determine the circumstances under
which such information was obtained by such third party);
d. technical information which was or is independently developed by an
employee or Advisor not having access to Confidential Information
supplied by Bucyrus; or
e. information released from its confidential status by the prior written
consent of Bucyrus.
10. Bucyrus makes no representation or warranty as to the accuracy or
completeness of Confidential Information.
11. This agreement shall be governed by and interpreted in accordance with
the internal laws of the State of Wisconsin.
IN WITNESS WHEREOF, the parties hereto have entered into this Confidentiality
Agreement as of the date first written above.
BUCYRUS INTERNATIONAL, INC. AMERICAN INDUSTRIAL PARTNERS
By: /s/ X.X. Xxxxxxxxxx By: /s/ Xxxxxxxx X. Xxxx Xx.
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X.X. Xxxxxxxxxx Name: Xxxxxxxx X. Xxxx Xx.
President & Chief Executive Officer ------------------------
Title: Principal
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