Exhibit (c)(10)
December 2, 1997
Gentlemen:
In connection with the consideration of a possible negotiated
transaction (the "Transaction") between our companies, the company named below
(the "Company") may furnish to the counterparty named below ("Shareholder")
information pertinent to the review and evaluation of the business of the
Company. Each party agrees with the other as follows:
1. Nondisclosure of Information. Shareholder agrees that
the Evaluation Material (as defined in the following paragraph) is
confidential and proprietary, and that, subject to section 2 of this letter
agreement, such information will be kept strictly confidential by the
Shareholder and its Representatives (as defined in the following
paragraph). Subject to section 2 of this letter agreement, Shareholder
also agrees to disclose the Evaluation Material only to its Representatives
who need to know such information for the purpose of evaluating the
Transaction, who are informed by the shareholder of the confidential nature
of such information and who shall agree to treat such information
confidentially in accordance with the terms and conditions of this
Agreement. Shareholder will be responsible for any breach of this
Agreement by its Representatives.
"Representatives" of a party shall mean the party's directors,
officers, employees, affiliates, representatives (including, without
limitation, attorneys, accountants and financial and other advisers) or
agents, and shall also include in the case of the Shareholder prospective
lenders and their officers, employees and advisers. "Evaluation Material"
shall mean all information of the Company (whether written or oral and whether
prepared by such party, its advisers or otherwise) which is or has been
furnished to the Shareholder or any of its Representatives at any time
(whether before, after or on the date of this Agreement) by or on behalf of
the Company or its Representatives and all analyses, compilations, forecasts,
studies or other documents prepared by the receiving party or its
Representatives in connection with such receiving party's or its
Representatives review of, or such receiving party's interest in, the
Transaction, to the extent that they contain or reflect such information;
provided, however, that the term "Evaluation Material" does not, however,
include information which (i) is or becomes generally available to the public
other than as a result of a disclosure by Shareholder or its Representatives
contrary to this letter agreement or (ii) is or becomes available to the
Shareholder on a non-confidential basis from a source other than the Company
or its Representatives, which source, to the best knowledge of the receiving
party after due inquiry, is not prohibited from disclosing such information to
the receiving party by a legal, contractual or fiduciary obligation to the
Company.
Subject to section 2 of this letter agreement, without the
prior written consent of the providing party, except as required to comply
with applicable law or stock exchange rules, the Shareholder will not, and
will cause its Representatives not to, disclose to any person other than its
Representatives the fact that the Evaluation Material exists or has been
provided to such party, that the Shareholder is considering the Transaction or
any other possible transaction involving the other party or that discussions
or negotiations are taking place concerning a possible transaction involving
the Shareholder or any of the terms, conditions or other facts with respect to
any such possible transaction, including, without limitation, the status
thereof.
Each party hereby acknowledges that it is aware, and that it
will advise its Representatives who are informed as to the matters which are
the subject of this Agreement, that the United States securities laws prohibit
any person who has received from an issuer any material, non-public
information from purchasing or selling securities of such issuer or from
communicating such information to any other person under circumstances in
which it is reasonably foreseeable that such person is likely to purchase or
sell such securities.
2. Required Disclosure. The Company acknowledges that
Shareholder may disclose Evaluation Material to the extent that such
disclosure is required in connection with the Transaction or any other
transaction under applicable securities laws and is consistent with
applicable fiduciary duties under state law; provided, that in any such
case the Shareholder gives the Company written notice of the information to
be disclosed as far in advance of its disclosure as is reasonably
practicable. In addition, if the Shareholder or any of its Representatives
is requested in any proceeding to disclose any Evaluation Material, the
Shareholder will give the Company prompt written notice of such request so
that the providing party may seek an appropriate protective order. If in
the absence of a protective order the Shareholder or any of its
Representatives, in the opinion of counsel, is compelled in a proceeding to
disclose Evaluation Material, the Shareholder or such Representative may
disclose such portion of the Evaluation Material which counsel advises in
writing that the Shareholder or such Representatives is compelled to
disclose, without liability under this Agreement, provided, however, that
the Shareholder gives the Company written notice of the information to be
disclosed as far in advance of its disclosure as is reasonably practicable
and uses all reasonable efforts to obtain assurances that confidential
treatment will be accorded to such information.
3. No Representation or Warranty. Although the Company
will endeavor to include in the Evaluation Material information which it
believes to be relevant for the purpose of the Shareholder's investigation,
the Shareholder understands that neither the Company nor any of its
Representatives have made or make any representation or warranty as to the
accuracy or completeness of the Evaluation Material. Each party agrees
that neither the Company nor its Representatives shall have any liability
to the receiving party or any of its Representatives resulting from the use
of the Evaluation Material. The Shareholder further agrees that it is not
entitled to rely on the accuracy or completeness of the Evaluation Material
and that it will be entitled to rely solely on such representations and
warranties as may be included in any definitive agreement with respect to a
Transaction, subject to such limitations and restrictions as may be
contained therein.
4. Termination of Discussions and Negotiations. The
Shareholder acknowledges and agrees that the Company reserves the right, in
its sole discretion, to reject any and all proposals made by the
Shareholder or its Representatives with regard to the Transaction, and
(subject to the provisions of any definitive agreement with respect to the
Transaction, if such an agreement is executed) to terminate discussions and
negotiations at any time and for any or no reason.
If either party determines not to proceed with the Transaction,
it will promptly inform the other party of that decision.
5. Specific Enforcement. The Shareholder agrees that money
damages would not be a sufficient remedy for any breach of this Agreement
by it or its Representatives, and that in addition to all other remedies
available under applicable law, the Company shall be entitled to specific
performance and to injunctive or other equitable relief as a remedy for any
such breach without proof of actual damages. The Shareholder agrees not to
oppose the granting of such relief, and to waive any requirement for the
securing or posting of any bond in connection with such remedy. If a court
of competent jurisdiction determines in a final, nonappealable order that
this letter agreement has been breached by the Shareholder or its
Representatives, then such Shareholder will reimburse the Company for the
Company's costs and expenses (including, without limitation, legal fees and
expenses) incurred in connection with all such litigation.
6. General Provisions. This Agreement contains the entire
agreement between the parties concerning the subject matter hereof. No
amendment, modification or discharge of this letter agreement, and no
waiver hereunder, shall be valid or binding unless set forth in writing and
signed by each party. Any such waiver shall constitute a waiver only with
respect to the specific matter described in such writing and shall in no
way impair a party's rights in any other respect or at any other time.
Each party also agrees that no failure or delay by a party in exercising
any right, power or privilege under this Agreement will operate as a waiver
thereof, nor will any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any right, power or
privilege under this Agreement. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original copy of this
Agreement, and all of which, taken together, shall be deemed to constitute
one and the same agreement.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to its conflict
of laws principles or rules.
Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
Very truly yours,
TriMas Corporation
By /s/ Xxxxx X. XxXxxxxx
--------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
and Treasurer
Xxxxxxxxx and agreed to as
of the date of this letter:
MascoTech, Inc.
By /s/ Xxxxx X. Liner
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
and Corporate Counsel
