[LETTERHEAD OF COOPERS & XXXXXXX]
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
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October 29, 1996
Xx. Xxxxxxxxxx Xxxxxxx
Pandora Capital
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
In connection with Coopers & Xxxxxxx L.L.P.'s ("C&L") role as exclusive
financial advisor to Peerless Industrial Group, Inc. ("Peerless" or the
"Company") regarding the sale or merger of the Company, we have furnished or
will furnish you with certain information, both oral and written, concerning the
Company. Such information, in whole or in part, together with any additional
such information furnished to you and any analyses, compilations, studies,
materials, memoranda, data, notes or documents prepared during the review of the
Company, including verbal information or information acquired during a plant
tour, by you, your agents, directors, officers, employees, counsel, consultants,
affiliates or advisors (your "Representatives") which contain or otherwise
reflect such information, is hereinafter referred to as the "Information." In
consideration of our furnishing the Information to you, you hereby agree that:
1. The Information will be kept confidential and shall not, without the
prior written consent of C&L or the Company, be disclosed by you, or
your Representatives, in any manner whatsoever, in whole or in part,
and shall not be used by you or your Representatives other than in
connection with the transaction identified above, and shall be
disclosed by you only to your Representatives who have a "need to
know" such Information in order to evaluate whether to proceed with
the transaction identified above and who shall be informed by you of
the confidential nature of the Information and who shall have first
agreed to be bound by the terms and conditions of this Agreement.
2. Without the prior written consent of C&L or the Company you will not,
and will direct your Representatives not to, disclose to any person
either the fact that discussions or negotiations are taking place
concerning a possible transaction or any of the terms, conditions or
other facts with respect to any such possible transaction, including
the status thereof and the subject matter of this Agreement. No
request or proposal to amend, modify or waive any provision of this
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Agreement (other than a request or proposal made or solicited by the
Company) shall be made or solicited except in a non-public and
confidential manner. The term "person" as used in this Agreement
shall be broadly interpreted to include, without limitation, any
corporation, company, partnership or individual.
3. The Information, except for that portion of the Information which
consists of analyses, compilations, studies, material, memoranda,
data, notes or other documents prepared by you or your
Representatives, will be returned to C&L or the Company immediately
upon C&L's request without retaining any copies thereof. That portion
of the Information which consists of analyses, compilations, studies,
material, memoranda, data, notes or other documents prepared by you or
your Representatives will be destroyed and such destruction shall be
certified in writing to C&L by an authorized officer supervising such
destruction.
4. In the event that you or anyone to whom you transmit the Information
pursuant to this Agreement becomes legally compelled to disclose any
of the Information, you will provide C&L and the Company with prompt
notice before such Information is disclosed so that the Company may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event that
such protective order or other remedy is not obtained, you will
furnish only that portion of the Information which you are advised by
written reasonable opinion of counsel is legally required and will
exercise your best efforts to assist the Company in obtaining a
protective order or other reliable assurance that confidential
treatment will be accorded to the Information that is disclosed.
5. Any questions concerning the Information will be directed by you
exclusively to C&L. You shall not approach the Company or any of its
employees, without the prior consent of C&L.
6. Until December 31, 1997, unless such shall have been specifically
invited in writing by the Company, neither you nor any of your
subsidiaries 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 knowingly 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 Company
or any of its subsidiaries; (ii) any tender offer or exchange offer,
merger or other business combination involving the Company or any of
its subsidiaries; (iii) any recapitalization, restructuring,
liquidation, dissolution or other extraordinary transaction with
respect to the Company or any of its 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 Company; (b) form, join or in any way
participate in a "group" (as defined under the Securities Exchange Act
of 1934); (c) otherwise knowingly act, alone or in concert with
others, to seek to control or influence the management, board of
directors or policies of the Company; (d) knowingly take any action
which might force the Company to make a public announcement regarding
any of the types of
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matters set forth in (a) above; or (e) knowingly enter into any
discussions or arrangements with any third party with respect to any
of the foregoing.
7. Nothing contained herein shall in any way restrict or impair your
right to use, disclose or otherwise deal with:
(a) Information which at the time of its disclosure is, or which
thereafter becomes through no fault of yours or your
Representatives, part of the public domain by publication or
otherwise; and
(b) Information which you can show was in your possession, or the
possession of one or more of your parent, subsidiary or
affiliated companies or Representatives at the time of disclosure
and was not acquired, directly or indirectly, under any secrecy
obligation to the Company or another party.
8. You will not, for a period of one (1) year from the date hereof,
advise or encourage any employee or independent contractor employed by
the Company to terminate employment with the Company, knowingly
interfere or attempt to interfere with the employment relationship
between the Company and any of its employees or with any independent
contractor who performs services for the Company.
9. You will not, based upon the Information, directly or indirectly,
solicit customers, suppliers or distributors of the Company.
10. You understand and agree that (i) the Company and C&L shall be free to
conduct the process relating to any possible transaction as they shall
determine in their sole discretion and (ii) you shall not have any
rights or claims whatsoever against the Company, C&L or any of their
respective Representatives arising out of or relating to any
transaction (other than any rights or claims arising out of any
definitive written agreement that may be entered into with the Company
in accordance with its terms).
11. You understand that neither C&L nor the Company are making any
representation or warranty, express or implied, as to the accuracy or
completeness of the Information. C&L, the Company and their
respective Representatives have disclaimed any and all liability to
you and your Representatives arising from your use of or reliance on
the Information.
12. Except as expressly provided herein with respect to the
confidentiality and non-disclosure of the Information, nothing in this
Agreement shall obligate any party in any manner whatsoever with
respect to the consummation of negotiations for any transaction
between and among you and the Company.
13. No failure or delay by the Company or any of its representatives in
exercising any right, power or privilege under this Agreement 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 herewith. No provision of this
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Agreement may be waived or amended nor any consent given except by a
writing signed by a duly authorized representative of the Company,
which specifically refers to this Agreement and the provision so
amended or for which such waiver or consent is given. In case any
provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be
affected or impaired thereby.
You agree that money damages would not be sufficient remedy for any breach of
this Agreement and, therefore, in addition to any other remedies available to
the Company in the event of your, or your Representatives', breach of the terms
hereof, the Company shall also be entitled to specific performance and
injunctive or other equitable relief. You agree to waive, and to cause your
Representatives to waive, any requirement for the securing or posting of any
bond in connection with such remedy. This Agreement constitutes the entire
Agreement between and among the parties as to the subject matter hereof, no
representations having been made by any of the parties except as herein
specifically set forth. No rights or obligations other than those expressly
recited herein are to be implied from this Agreement. This Agreement shall be
construed and enforced in accordance with the laws of the State of New York,
without regard to such State's conflict of laws principles.
Sincerely,
/s/ Xxxx Xxxxx
Xxxx Xxxxx
Managing Director
Coopers & Xxxxxxx L.L.P.
Accepted and agreed to this 30th day of October, 1996:
Pandora Capital
By: /s/ Xxxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxxx Xxxxxxx
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Title: President
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