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[MEASUREX LOGO]
March 29, 1996
Xx. Xxxxxx Xxxxxxx
General Counsel
Honeywell Inc.
Honeywell Plaza
MN12-5279
Minneapolis, Minnesota 55408
Dear Xx. Xxxxxxx:
This letter agreement is entered into in connection with the consideration
of a possible financial transaction between Honeywell Inc. (collectively with
its subsidiaries and affiliates, the "Corporation") and Measurex Corporation
(collectively with its subsidiaries and affiliates, "Measurex"). The possible
transaction referred to in the preceding sentence is referred to herein as the
"Transaction". Measurex is prepared to make available to Corporation certain
information concerning its business operations and assets. As a condition to
such information being furnished to Corporation and its respective directors,
officers, employees, agents or advisors (including, without limitation,
attorneys, accountants, consultants, bankers and financial advisors) (herein
collectively referred to as "Representatives"), Corporation agrees to treat any
information concerning Measurex (whether prepared by Measurex, its advisors or
otherwise and irrespective of the form of communication) which is furnished to
Corporation or to its Representatives by or on behalf of Measurex (herein
collectively referred to as the "Evaluation Material") in accordance with the
provisions of this letter agreement and to take or abstain from taking certain
other actions hereinafter set forth.
The term "Evaluation Material" shall be deemed to include all notes,
analyses, compilations, studies, interpretations or other documents prepared by
Corporation, or its respective Representatives, as the case may be, which
contain, reflect, or are based upon, in whole or in part, the information
furnished to Corporation or its respective Representatives pursuant hereto. The
term "Evaluation Material" does not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by
Corporation or its Representatives in violation of the terms of this agreement,
(ii) was within the possession of Corporation prior to its being furnished to
Corporation by Measurex, provided that the source of such information was not
known by Corporation to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to Measurex, or
any other party with respect to such information, or (iii) becomes available to
Corporation on a non-confidential basis from a source other than Measurex to
which the information relates or any of its Representatives, provided that such
a source is not known by the Corporation to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to Measurex, or any other party with respect to such
information.
Corporation hereby agrees that it and its Representatives shall use the
Evaluation Material for the purpose of evaluating the Transaction, that the
Evaluation Material will be kept confidential and that Corporation and its
Representatives will not disclose any of the Evaluation Material in any manner
whatsoever; provided, however, that (i) Corporation may make any disclosure of
such information to which Measurex gives its prior written consent and (ii) any
of such information may be disclosed to Representatives of Corporation who need
to know such information for the purpose of evaluating the Transaction and who
agree to keep such information confidential. Corporation shall be responsible
for any breach of this letter agreement by any of its Representatives and
agrees, at its sole expense, to take all reasonable measures (including but not
limited to court proceedings) to restrain its Representatives from prohibited or
unauthorized disclosure or use of the Evaluation Material.
In addition, Corporation agrees that, without the prior written consent of
Measurex, Corporation and its Representatives will not, and Measurex and its
Representatives agree that without the prior written consent they will not
disclose to any person the fact that the Evaluation Material has been made
available to Corporation, that discussions or negotiations are taking place
concerning the Transaction or any of the terms, conditions or other facts with
respect thereto (including the status thereof), unless in the opinion of counsel
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acceptable to Measurex or Corporation, as the case may be, such disclosure is
required by law and then only with as much prior written notice to Measurex or
Corporation, as the case may be, as is practical under the circumstances. The
term "person" as used in this letter agreement shall be broadly interpreted to
include the media and any corporation, partnership, group, individual or other
entity.
In the event that Corporation or any of its Representatives are requested
or required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Evaluation Material, Corporation shall
provide Measurex with prompt written notice of any such request or requirement
so that Measurex may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this letter agreement. If, in the
absence of a protective order or other remedy or the receipt of a waiver by
Measurex, Corporation or any of its Representatives are nonetheless, in the
written opinion of counsel, legally compelled to disclose Evaluation Material to
any tribunal or else stand liable for contempt or suffer other censure or
significant penalty, Corporation or any of its Representatives may, without
liability hereunder, disclose to such tribunal only that portion of the
Evaluation Material which such counsel advises is legally required to be
disclosed, provided that Corporation or its Representative exercises its
reasonable efforts to preserve the confidentiality of the Evaluation Material,
including, without limitation, by cooperating with Measurex to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Evaluation Material by such tribunal.
If Measurex and Corporation decide not to proceed with the Transaction,
Corporation will promptly deliver to Measurex all documents (and all copies
thereof) furnished to it or its Representatives by or on behalf of Measurex. In
addition, all notes, analyses, compilations, studies, interpretations and other
writings prepared by Corporation or its respective Representatives which reflect
or are based on the information in the Evaluation Material shall be destroyed,
and such destruction shall be certified to Measurex in writing by Corporation
through an officer supervising such destruction. Notwithstanding the return or
destruction of the Evaluation Material, Corporation and its Representatives will
continue to be bound by their obligations of confidentiality and other
obligations hereunder.
Although Measurex has endeavored and will endeavor to include in the
Evaluation Material information which it believes to be relevant for the purpose
of Corporation's evaluation of the Transaction, Corporation acknowledges that
neither Measurex nor its Representatives make any representation or warranty as
to the accuracy or completeness of the Evaluation Material. Corporation agrees
that neither Measurex nor its Representatives shall have any liability to it or
its Representatives relating to or resulting from the use of the Evaluation
Material in accordance with and as contemplated by this letter agreement.
Corporation agrees that, for a period of two years from the date hereof,
without the prior written consent of Measurex neither Corporation nor any of its
Representatives or subsidiaries will in any manner, directly or indirectly,
effect, propose (whether publicly, to Measurex or its affiliates) to effect, or
cause any other person to effect or propose (whether publicly, to Measurex or
its affiliates or otherwise) to effect (i) any acquisition of any securities
other than in connection with the Corporation's employee benefits plans not in
excess of 5% of Measurex outstanding securities or assets other than in the
ordinary course of business of Measurex or any of its subsidiaries, (ii) any
tender or exchange offer, merger or other business combination involving
Measurex or any of its subsidiaries, (iii) any recapitalization, restructuring,
liquidation, dissolution or other transaction with respect to Measurex or any of
its subsidiaries or (iv) any solicitation of proxies or consents to vote any
voting securities of Measurex. Further, for a period of one year from the date
hereof no employee of Corporation who has had access to any of the Evaluation
Material or any person who has received information regarding the Evaluation
Material from any such employee will solicit for employment or offer employment
to any non-clerical Measurex employee.
Measurex and Corporation each agrees that unless and until a definitive
agreement regarding the Transaction has been executed, neither party will be
under any legal obligation of any kind whatsoever with respect to such
Transaction by virtue of this letter agreement except for the matters
specifically agreed to herein. Measurex and Corporation each further
acknowledges and agrees that either party reserves the right, in
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its sole discretion, to reject any and all proposals made by the other party or
its Representatives with regard to the Transaction, and to terminate discussions
and negotiations covering the Transaction at any time.
It is further understood and agreed that money damages would not be
sufficient remedy for any breach of this letter agreement by Measurex or
Corporation, and that either party shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for any such breach.
Such remedies shall not be deemed to be the exclusive remedies for a breach of
this letter agreement but shall be in addition to all other remedies available
at law or equity. In the event of litigation relating to this letter agreement,
if a court of competent jurisdiction determines in a final, nonappealable order
that a party has breached this letter agreement, then such party shall be liable
and pay to the non-breaching party the reasonable legal fees such non-breaching
party has incurred in connection with such litigation, including any appeal
therefrom.
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
Please confirm your agreement with the foregoing by signing and returning
one copy of this letter to the undersigned, whereupon this letter agreement
shall become a binding agreement between Measurex and Corporation.
Very truly yours,
Measurex Corporation
By /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Assistant Secretary
Accepted and agreed:
Honeywell Inc.
By /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President and General Counsel
Dated: March 29, 1996
