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EXHIBIT 4.5
CONFIDENTIALITY AGREEMENT BY AND BETWEEN FIRST
UNION SECURITIES INC., ACTING ON BEHALF OF
THE COMPANY, AND INTERPOOL, INC.
DATED AS OF JANUARY 4, 2000
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CONFIDENTIALITY AGREEMENT
First Union Securities, Inc.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
The Cronos Group ("Cronos") and Interpool, Inc. (the "Company") are
interested in discussing and evaluating the potential sale of Cronos to the
Company and/or an affiliate of the Company or a business combination
transaction involving Cronos and the Company and/or an affiliate of the Company.
In connection with such negotiations ("Negotiations"), information of a
confidential nature has been and/or will be disclosed by Cronos (the term
"Cronos" including, for purposes of this Agreement, all of its directly and
indirectly owned subsidiaries and other affiliates and all of its and its
directly and indirectly owned subsidiaries' and other affiliates' officers,
employees, representatives and other agents) to the Company (the term "Company"
including, for purposes of this Agreement, all of its directly and indirectly
owned subsidiaries and other affiliates) or its Agents (as hereinafter
defined). In consideration of Cronos providing such information to the Company
and its Agents and in order to protect Cronos's interests therein, the Company
and Cronos hereby agree as follows:
1. All information disclosed or transmitted by Cronos, whether verbally
or in written, electronic, recorded or other form, to the Company or any of its
Agents, including without limitation all financial information, marketing
information, customer and supplier information, manufacturing and technical
information and intellectual property, whether prior to, on or after the date
hereof and whether or not in writing (collectively, the "Confidential
Information") shall be treated by the Company and its Agents as set forth in
this Agreement. As used herein, the term "Confidential Information" shall also
include all analyses, records, compilations, studies, notes or other documents
(whether in written, electronic, recorded or other form) whatever prepared by
the Company or its Agents which contain or otherwise reflect Confidential
Information.
2. Except as required by law, including the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Exchange Act") and the rules and regulations of any national
securities exchange or over-the-counter market, without the prior written
consent of Cronos, (a) the Company shall keep confidential and shall not
disclose any Confidential Information to any third person or entity (private or
governmental) except to such of its or its directly and indirectly owned
subsidiaries' and other affiliates' officers, directors, employees, agents,
advisors or other representatives, including without limitation accountants,
attorneys, business consultants and financial advisors (all the foregoing,
"Agents") who need to know the Confidential Information for the purposes
contemplated by this Agreement, who are informed of the confidential nature of
the Confidential Information and who agree to be bound by the restrictions of
this Agreement; and (b) the Company and its Agents shall use the Confidential
Information only for the purposes contemplated by this Agreement and in no event
in any way detrimental to Cronos or for any other purpose, commercial or
otherwise. Each of these parties agrees that, except as deemed necessary by such
party's counsel to comply with applicable law (including the Exchange Act) or
the rules and regulations of any national securities exchange or
over-the-counter market, it would not disclose to any party that
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CONFIDENTIALITY AGREEMENT
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negotiations are taking, or have taken, place between the parties and the terms
and status thereof, including the fact that this Agreement has been entered
into (collectively, the "Other Information").
3. This Agreement shall be inoperative as to any Confidential
Information which (a) is or becomes available or known publicly without a
breach of this Agreement by the Company or its Agents, or (b) is subsequently
disclosed to the Company by a third person or entity who is known by the
Company to be not prohibited from disclosing same by a contractual, fiduciary
or other legal obligation to Cronos, or (c) is independently developed by the
Company without reference to the Confidential Information. In addition, nothing
in this Agreement shall be construed to limit the ability of the Company to
make such disclosures as are deemed necessary or appropriate by its counsel to
comply with the Exchange Act, including, without limitation, in connection with
a tender offer or proxy or consent solicitation.
4. Each of the parties shall be responsible for any breach of this
Agreement by any of its Agents, including those who become former Agents after
the date hereof. In addition, (a) the Company shall, at its sole expense, take
all reasonable actions, including without limitation court proceedings, to
restrain its Agents and former Agents from unauthorized disclosure or use of
the Confidential Information, and (b) each of the parties shall, at such
party's sole expense, take all reasonably actions, including without
limitation, court proceedings, to restrain its Agents from unauthorized
disclosure of the Other Information.
5. Any Confidential Information provided to the Company or its Agents
shall be returned (with all copies, extracts or other whole or partial
reproductions thereof) to Cronos, and the Company and its Agents shall destroy
all analyses, records, compilations, studies, notes or other documents (whether
in written, electronic, recorded or other form) prepared by or for the Company
which contain or are based on any Confidential Information and provide Cronos
with a certificate of an officer of the Company to the effect that all such
Confidential Information has been returned or destroyed as required, all within
thirty days of receipt by the Company of a written request therefor from Cronos.
6. Nothing in this Agreement shall give the Company any right, title,
license or interest whatever in or to the Confidential Information (which shall
remain at all times the property of Cronos) or in or to any existing or future
patents, know-how, inventions or other intellectual property of Cronos.
7. If a party or any of its Agents is requested, or upon the advice of
legal counsel, is required, in any court proceeding (e.g., by oral questions,
interrogatories, requests for information or documents, subpoena or the like),
by any government agency or authority or by law (other than the Exchange Act) to
disclose any of the Confidential Information or Other Information, as the case
may be, the disclosing party shall promptly so notify the other party so that
the other party may seek appropriate protective relief or waive compliance with
the applicable provisions of this Agreement for such situation. If the other
party does not obtain such relief on a timely basis, the disclosing party may
disclose only that portion of the Confidential Information or Other Information,
as the case may be, which its legal counsel
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advises must be disclosed and the disclosing party will use its reasonable
efforts to obtain satisfactory assurances that the Confidential Information or
Other Information, as the case may be, will be maintained in confidence
following its required disclosure. The provisions of this paragraph 7 shall not
apply to any disclosure permitted to be made pursuant to the introductory
proviso of paragraph 2.
8. The obligations of a party not to use or disclose (including not to
allow the use or disclosure by its Agents), and to return on request or
destroy, the Confidential Information or the Other Information shall continue
for a period of three years from the date hereof.
9. For a period of one year from the date hereof, the Company shall not
solicit for hire or hire as a director, officer, employee, independent
contractor, consultant or advisor any person employed by Cronos on the date
hereof in an executive or significant managerial, financial, sales, marketing,
engineering, research, development, manufacturing or technical position with
whom the Company has had contact or who becomes known to the Company in
connection with the Negotiations. However, the foregoing provisions of this
paragraph shall not prevent the Company from hiring any such person, who, at
the time of the initial contact with the Company regarding employment, is
responding to (a) a general advertisement or other non-directed search inquiry
or (b) who is no longer employed by Cronos and, at the time of such contact, had
not been employed by Cronos for at least three months.
10. The Company understands that Cronos shall endeavor to assure that any
Confidential Information or other information provided to the Company pursuant
to this Agreement will be accurate and relevant for the purposes contemplated
by this Agreement but acknowledges that Cronos is not making any representation
or warranty as to, and shall not have liability in regard to, the accuracy or
completeness of such Confidential Information or other information.
11. The Company understands that no contract or agreement providing for
any transaction with Cronos shall be deemed to exist between the parties unless
and until a definitive agreement has been executed and delivered by both
parties. Only representations and warranties, if any, hereafter made in such
definitive agreement shall have any legal effect and agrees that Cronos may
establish procedures and guidelines for the submission of proposals with respect
to the transaction contemplated by this Agreement and may change those
procedures at any time without prior notice. The Company and its representatives
shall act in accordance with these procedures and agree to be bound by the terms
and conditions thereof. The Company further acknowledges that Cronos is free to
conduct the process leading up to a possible sale of Cronos as Cronos, in it
sole discretion, determines, including, without limitation, the negotiation and
entering into of any preliminary or definitive agreement with any other person
or entity without prior notice to the Company. Unless and until complete and
definitive written agreements for an actual sale and purchase of Cronos between
Cronos and the Company have been formally prepared, executed and delivered by
both parties, after approval by their respective Board of Directors, (a) each
has the right, in its sole discretion, to reject any proposal from the other
and/or to terminate the Negotiations at any time, and (b) neither will have any
further legal obligation of any sort except for the matters specifically agreed
to in this Agreement. Only
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representations and warranties, if any, hereafter made in such definitive
agreements shall have any legal effect.
12. Each of the parties shall advise their Agents who are aware or become
aware of the Negotiations and/or to whom Confidential Information or the Other
Information is disclosed, that United States securities laws prohibit them, as
recipients from an issuer of material, non-public information regarding that
issuer, from buying or selling securities of that issuer or from communicating
such material, non-public information to any other person where it is
reasonably likely or foreseeable that such person may purchase or sell such
securities in reliance upon such information.
13. The Company agrees, during the Standstill Period (as defined below),
that it shall not, alone or through or with any other person or entity, in any
manner, without the prior written consent of Cronos:
(i) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities of Cronos or any
subsidiary thereof, or any assets of Cronos or any subsidiary or division
thereof;
(ii) file with the SEC or mail a proxy statement relating to the
solicitation of proxies by the Company from the shareholders of Cronos to be
used at the 1999 Annual Meeting of Shareholders of Cronos in support of the
election of the Company's nominees (as set forth in the Company's preliminary
proxy statement filed with the SEC on August 24, 1999 as amended December 3,
1999) to the Board of Directors of Cronos;
(iii) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any extraordinary
transaction involving Cronos or its securities or assets: (1) act, directly or
indirectly, to seek to control, direct or influence the management, Board of
Directors, stockholders, policies or affairs of Cronos or communicate with any
of the shareholders of Cronos; or
(iv) form, join or in any way participate in a "group" as defined
in Section 13(d)(3) of the Exchange Act) in connection with any of the
foregoing.
The foregoing provisions shall not prohibit or otherwise prevent the
Negotiations as contemplated by this Agreement, between Cronos and the Company.
The Company and Cronos each agree that during the Standstill Period not to
initiate any legal action against the other in any court or jurisdiction except
to the extent necessary to enforce the provisions of this Agreement.
As used in this Agreement, the term "Standstill Period" shall mean the period
beginning on the date of this Agreement and ending the earlier of (i) such date
that it is publicly announced, whether by press release, filing with the SEC or
otherwise, that Cronos or any affiliate thereof has entered into a letter of
intent, agreement in principle or any other agreement with any party with
respect to a Competing Transaction (as hereafter defined), (ii) such date that
any person or
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"group" (as defined in Section 13(d)(3) of the Exchange Act), other than the
Company or its affiliates or any group of which any of the Company or its
affiliates is a member, shall have acquired or announced its intention to
acquire (including by commencement of a tender or exchange offer) beneficial
ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange
Act) of 25% or more of Cronos's common stock, (iii) 11:58 p.m., New York City
Cronos, on April 30, 2000. For the purposes of this Agreement, "Competing
Transaction" shall mean any of the following: (i) any merger, consolidation,
share exchange, recapitalization, restructuring, liquidation, dissolution,
business combination, joint venture or other extraordinary transaction involving
Cronos or any of its subsidiaries; (ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition of a significant portion of the assets of
Cronos and its subsidiaries, taken as a whole, in a single transaction or series
of related transactions; (iii) any tender or exchange offer for 25% percent or
more of the outstanding shares of capital stock of Cronos made by any Person
(including Cronos or any affiliate thereof); (iv) any transaction by which any
Person would acquire the ability to elect a majority of the members of Cronos's
Board of Directors; (v) any sale or proposed sale of equity securities
representing, or securities convertible, exchangeable or representing the right
to acquire, more than 25% of the equity capitalization of Cronos; or (vi) any
similar business combination or extraordinary transaction.
In consideration for entering into the Standstill Period agreement, Cronos
agrees to allow the Company to conduct such due diligence as is reasonable and
customary.
14. The Company agrees that Cronos shall not be obligated to pay any fees
on its behalf to any brokers, finders, or other parties claiming to represent
the Company in the transaction contemplated by this Agreement, unless otherwise
agreed to in a subsequent agreement.
15. In the event of any breach of any provision of this Agreement, the
parties acknowledge and agree that money damages would not be a sufficient
remedy, and the non-breaching party shall therefore be entitled to equitable
relief, including in the form of injunctions and orders for specific
performance and without the necessity of posting any bond, in an action
instituted in any court having subject matter jurisdiction, in addition to all
other remedies available to the non-breaching party with respect thereto at law
or in equity. Except as otherwise provided herein, this Agreement shall
terminate one year from the date hereof, provided that the expiration of any
period of time specified in this Agreement is not intended to terminate the
rights and obligations of either party hereto in regard to any breaches of
this Agreement occurring prior to the expiration of such period, which rights
and obligations shall continue.
16. No failure or delay by either party hereto in exercising in whole or
in part any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise or waiver thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or at law or in equity. Either party hereto may at any
time waive compliance by the other with any covenant, condition or agreement
contained in this Agreement, but only by a written instrument executed by the
party expressly waiving such compliance.
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17. This Agreement shall be governed by, and interpreted and enforced in
accordance with, the local laws of the State of California applicable to
contracts to be performed fully within such state and without regard to the
conflicts of law provisions thereof or of any other jurisdictions.
18. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. This
Agreement may not be assigned or otherwise transferred by either party hereto
(including by operation of law) without the prior written consent of the
non-assigning party. No assignment will in any event relieve the assigning party
of any of its obligations hereunder without the prior written consent of the
non-assigning party. No assignment will in any event relieve the assigning party
of any of its obligations hereunder without the prior written consent of the
non-assigning party. The language used in this Agreement was selected by the
parties jointly, and no presumptions of legal construction or interpretation are
intended to, or shall, apply against either party as the author hereof. If any
provision of this Agreement shall be determined to be invalid or unenforceable,
it shall not affect the remainder of this Agreement, which shall continue in
full force and effect. This Agreement will be executed in two or more
counterparts, any or all of which shall constitute one and the same instrument.
19. This Agreement supersedes any other representation, warranty,
agreement, commitment, arrangement or understanding of any sort whatever,
whether written or oral, that may have been made or entered into by either
Cronos or the Company or its Agents relating to the matters contemplated
hereby, but not limited to, (i) the Confidentiality Agreement dated November
15, 1996 by and among the Company, Cronos and Xxxxxxx X. Xxxxxxx, and (ii) the
Mutual Nondisclosure Agreement dated as of May 20, 1999 by and between the
Company and Cronos. This Agreement constitutes the entire understanding and
agreement of the parties with respect to the subject matter hereof, and there
are no representations, warranties, agreements, commitments, arrangements or
understandings except as expressly set forth herein. This Agreement may not be
amended orally, but only by a written instrument executed by both parties
hereto expressly setting forth such amendment.
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If the foregoing agreement is acceptable, please sign both copies of this
letter, and return one to me at the above address.
FIRST UNION SECURITIES, INC. as agent for THE CRONOS GROUP
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Managing Director
The foregoing is hereby accepted and agreed to
as of Jan 9, 2000.
Interpool, Inc.
By: /s/ XXXXXXXX X. XXXXXX
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Xxxxxxxx X. Xxxxxx
Director
