Exhibit 99.(c)(1)
[FORM OF LETTERHEAD OF THE UNION CORPORATION]
August 18, 1997
Xx. Xxxxxxx X. Xxxxx
Outsourcing Solutions Inc.
Suite 000
000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
CONFIDENTIALITY AGREEMENT
Dear Xx. Xxxxx:
In connection with your consideration and evaluation of a
possible business combination with The Union Corporation and its subsidiaries
(together, the "Company"), you have requested information concerning the Company
which is either non-public, confidential or proprietary in nature. As a
condition to your being furnished such information, you agree to treat any
information (including all data, reports, interpretations, electronic images,
computer software, forecasts and records) concerning the Company which is
furnished to you by or on behalf of the Company and analyses, compilations,
studies or other documents, whether prepared by you or others, which contain or
reflect such information (herein collectively referred to as the "Information")
in accordance with the provisions of this letter. Information does not include
information which (i) was or becomes generally available to the public other
than as a result of a disclosure by you or your directors, officers, employees,
agents, or advisors (including, but not limited to, attorneys, accountants and
financial advisors) (such agents and advisors collectively referred to as
"representatives"), or (ii) was or becomes available to you from a source other
than the Company or their advisors, provided that such source was not known to
you to be subject to a confidentiality agreement with the Company, or (iii) was
within your possession prior to its being furnished to you by or on behalf of
the Company, provided that the source of such
Xx. Xxxxxxx X. Xxxxx
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information was not subject to a confidentiality agreement with the Company
in respect thereof.
In consideration of the furnishing of the Information, you agree that
the Information will be used solely for the purpose set forth herein and in
accordance with the terms of this Confidentiality Agreement, and that such
Information will be kept confidential by you and your representatives for three
years from the date of this Confidentiality Agreement provided, however, that
(i) any such Information may be disclosed to your directors, officers and
employees and representatives who need to know such Information for the purpose
set forth herein (it being understood that such directors, officers, employees
and representatives shall be informed by you of the confidential nature of such
Information and shall be directed by you to treat such Information
confidentially and shall assume the same obligations as you under this
agreement), and (ii) any disclosure of such Information may be made to which the
Company consents in writing. You shall be responsible for any breach of this
agreement by your directors, officers, employees or representatives.
In addition, without the prior written consent of the Company, you
will not, and will direct such directors, officers, employees and
representatives not to, disclose to any person either the existence of this
agreement or the fact that discussions or negotiations are taking place or have
taken place or may take place concerning one or more business combinations
involving the Company and you, or any of the terms, conditions, or other facts
with respect to any such possible business combinations, including the status
thereof. The term "person" as used in this letter shall be broadly interpreted
to include without limitation any corporation, company, group, partnership, or
individual.
You hereby acknowledge that the Information is being furnished to
you in further consideration of your agreement that for a period of two years
from the date of this Confidentiality Agreement without the prior written
consent of the Company: (1) neither you nor any of your affiliates or
related persons (including any person or entity directly or indirectly
controlled by or under common control with you) will make any public
announcement with respect to or submit any proposal, written or otherwise, to
the Company or its directors, shareholders or representatives for a
transaction (including, but not limited to, acquiring the Company through
merger or otherwise, acquiring a controlling interest in the Company or to
otherwise engage in or propose a business combination with the Company, or
attempt to exercise control over the Board of Directors of the Company or
nominate or solicit proxies for any director other than directors nominated
by the Company, unless requested by the Company to do so) between you (or any
of your affiliates) and the Company or any of its security holders, nor will
you, directly or indirectly, by purchase or otherwise, through your
affiliates or otherwise, along or with others, acquire, offer to acquire, or
agree to acquire, any voting securities or direct or indirect rights or
options to acquire any voting securities of the Company; (ii) you will not
solicit for hire or hire any
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employee of the Company, or cause any individual subject to an independent
contractor agreement with the Company to breach or void such independent
contractor agreement, provided that you shall not be precluded from such
solicitation or hiring if such employee or individual (a) initiated
discussions with you without any direct or indirect solicitation from you,
(b) responded to a general solicitation by you or (c) has been terminated by
the Company prior to commencement of discussions with you; (iii) you will not
take any action which might require the Company or any of its affiliates to
make a public announcement regarding the possibility of a merger,
consolidation, business combination or other similar transaction; and (iv)
you will indemnify any director, officer, employee or representative of the
Company and any "controlling person" thereof as such term is defined in the
Securities Act of 1933, for any liability, damage, or expense arising under
federal and state securities laws from an actual or alleged breach of this
agreement by you or your directors, officers, employees, representatives or
affiliates.
Upon the Company's request, you shall promptly return to the company
or destroy (with such destruction certified in writing to the Company) the
Information (whether prepared by the Company or otherwise) and will not retain
any copies, extracts or other reproductions in whole or in part of such written
material. All documents, memoranda, notes and other writings whatsoever,
prepared by you or your advisors based on the information contained in the
Information shall be destroyed, and such destruction shall be certified in
writing in the Company.
Although the Company and the Company's affiliates or representatives
have endeavored to include in the Information, information known to the Company
and the Company's affiliates or representatives which the Company and any of the
Company's affiliates or representatives believe to be relevant for the purpose
of your evaluation, you understand that the Company and the Company's affiliates
and representatives do not make any representation or warranty as to the
accuracy or completeness of the Information. You agree that you assume full
responsibility for all conclusions you derive from the Information and that
neither the Company, nor any of the Company's affiliates or representatives,
shall have any liability to you or any of your representatives resulting from
the use of the Information supplied by the Company or any of the Company's
affiliates or representatives, and that you shall be entitled to rely solely on
the representations and warranties made to you by the Company in any definitive
agreement regarding a possible business combination.
In the event you are required by legal or regulatory process to
disclose any of the Information or the existence of this agreement, you shall
provide the Company with prompt notice of such requirement so that the Company
may seek a protective order or other appropriate remedy or waive compliance with
the provisions of this agreement. In the event that a protective order or other
remedy is obtained, you shall use all reasonable efforts to assure that all
Information disclosed will be covered by such order or other remedy.
Xx. Xxxxxxx X. Xxxxx
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Whether such protective order or other remedy is obtained or the Company
waives compliance with the provisions of this agreement, you will disclose
only that portion of the Information which you are legally required to
disclose.
This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without regard to the conflict
of laws provisions thereof and may not be assigned without the Company's prior
written consent. This Confidentiality Agreement supersedes all prior agreements
between the parties, oral or written, concerning the disclosure and treatment of
the Information.
It is further 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 further exercise of any right, power, or privilege. Furthermore, you
agree that the Company shall be entitled, without limitation of any other
remedies to which it may be entitled by law, to injunctive relief, to specific
enforcement of this Confidentiality Agreement, and to damages in the event of
any violations of this Confidentiality Agreement.
You also acknowledge that this Confidentiality Agreement is not
intended nor shall it be construed to constitute an offer to acquire the Company
or any of its securities, under applicable laws, rules or regulations nor does
it evidence any decision by the Company to seek a merger, acquisition or
business combination involving the Company or any of its subsidiaries with or by
any person.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter to the Company whereupon this
letter will constitute your agreement with respect to the subject matter
thereof.
Very truly yours,
THE UNION CORPORATION
By: /s/ XXXXXX X. XXXXXX
-------------------------
Xxxxxx X. Xxxxxx
Chairman
Xx. Xxxxxxx X. Xxxxx
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Accepted and agreed to as of
the date first written above:
OUTSOURCING SOLUTIONS INC.
By: /s/ XXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
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