Exhibit (d)(3)
February 15, 2005
Xx. Xxxxxxx Xxxxxxxx
President Naturex Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Dear Jacques:
Re: Confidentiality Agreement
In connection with your consideration of a possible investment in Pure
World, Inc. (together with its affiliates, the "Company"), you have requested
certain publicly available and material non-public information describing the
Company. All such information (whether documentary, computerized or oral)
furnished (whether before or after the date hereof) by the Company or its
directors, officers, partners, shareholders, employees, affiliates,
representatives (including, without limitation, financial advisors, attorneys
and accountants) or agents, including Xxxxx Xxxxxxxx, Inc. (collectively "our
Representatives") to you or your directors, officers, partners, shareholders,
employees, affiliates, representatives (including, without limitation,
prospective lenders or investors, financial advisors, attorneys and accountants)
or agents (collectively "your Representatives") and all analyses, compilations,
forecasts, studies, summaries, notes, data and other documents and materials in
whatever form maintained, whether prepared by you, your representatives or
others, which contain or reflect, or are generated from, any such information or
which reflect your or your Representatives' review of, or your interest in, the
possible transaction is hereinafter referred to as the "Evaluation Material."
Evaluation Material does not include information that (i) is already in your
possession, provided that such information is not known by you to be subject to
another confidentiality agreement with or other obligation of secrecy to the
Company or another party, or (ii) becomes generally available to the public
other than as a result of a disclosure by you or your Representatives, or (iii)
becomes available to you on a non-confidential basis from a source other than
the Company or its Representatives, provided that such source is not known by
you to be bound by a confidentiality agreement with or other obligation of
secrecy to the Company or another party.
As a condition to, and in consideration of the Company providing you
with the Evaluation Material, you hereby agree and acknowledge as follows:
1. You and your Representatives (i) will keep the Evaluation Material
confidential and will not (except as required by applicable law, regulation or
legal process, and only after compliance with paragraph 4 below), without prior
written consent, disclose any Evaluation Material in any manner whatsoever, and
(ii) will not use any Evaluation Material other than in connection with your
6
consideration of the transaction. You further agree to disclose the Evaluation
Material only to your Representatives (a) who need to know the Evaluation
Material for the purpose of evaluating the transaction, (b) who are informed by
you of the confidential nature of the Evaluation Material and (c) who agree to
be bound by the terms of this agreement. You agree to cause your Representatives
to observe the terms of this agreement and will be responsible for any breach of
this agreement by any of your Representatives.
2. Without the prior written consent of the Company, you will not, and
will direct your Representatives not to, disclose to any person (i) the fact
that discussions or negotiations are taking place concerning a possible
transaction between the Company and you, (ii) any of the terms, conditions or
other facts with respect to any such possible transaction, including the status
thereof, (iii) that this agreement exists, or (iv) any opinion or view you may
have with respect to the Evaluation Material. The term "person" as used in this
Agreement shall be broadly interpreted to include, without limitation, any
individual, corporation, company, group, partnership unincorporated association
or organization, joint venture, trust or other entity. Furthermore, without
limiting the foregoing, you will not, and you will direct your Representatives
not to, initiate, contact or engage in any discussions concerning a possible
transaction with the Company with any employee, customer or supplier of the
Company without the prior written consent of the Company.
3. You agree that, for a period of eighteen months from the date of
this agreement (the "Standstill Period"), unless specifically invited in writing
by the Company, neither you nor any of your Representatives, acting on your
behalf, will in any manner, directly or indirectly, (a) other than through a
confidential offer directed to the Company, effect or seek, offer or propose to
effect, or cause or participate in or in any way assist any other person to
effect or seek, offer or propose to effect or participate in, (i) any
acquisition of any securities (or beneficial ownership thereof) or assets of the
Company; (ii) any tender or exchange offer, merger or other business combination
involving the Company; (iii) any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with respect to the Company; 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 other party; (b) from, join or in any way participate in a
"group" (as defined under the Securities Exchange Act of 1934, as amended) with
respect to the Company; (c) otherwise act , alone or in concert with others, to
seek to control or influence the management, Board of Directors or policies of
the Company; (d) take any action that might force the Company to make a public
announcement regarding any of the types of matters set forth in (a) above; or
(e) enter into any discussion or arrangements with any third party with respect
to any of the foregoing. Notwithstanding the foregoing, if during the Standstill
Period, any third party shall publicly announce and thereafter commence a tender
or exchange offer which, if consummated, would give such third party ownership
of 50% or more of the outstanding shares of the Company (a "Third Party Offer"),
you shall be entitled to commence a tender offer (a "Competing Offer") for at
least the same number of shares (provided that the Competing Offer provides for
a second-step merger yielding a blended purchase price per share which is at
least equal to the purchase price per share offered by the third party in the
Third Party Offer and in any subsequent second-step merger or acquisition
transaction if one is proposed by such third party) and to purchase shares
pursuant to such Competing Offer.
4. If you or your Representatives are requested or required by
applicable law, regulation or legal process to disclose any of the Evaluation
Material, you will notify the Company promptly in writing so that we may seek a
protective order or other appropriate remedy or, in our sole discretion, waive
compliance with the terms of this agreement. You and your Representatives agree
not to oppose any action by the Company to obtain a protective order or other
appropriate remedy. If no such protective order or other remedy is obtained, or
the Company waives compliance with the terms of the agreement, you and your
Representatives will furnish only that portion of the Evaluation Material that
you are advised by your counsel is legally required and will exercise your
reasonable best efforts to obtain reliable assurance that confidential treatment
will be accorded the Evaluation Material.
5. You understand 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 or any errors therein or
omissions therefrom. You agree that neither the Company nor its Representatives
shall have any liability to you or your Representatives resulting from the use
of the Evaluation Material. You further agree that you are not entitled to rely
on the accuracy or completeness of any Evaluation Material and that you shall be
entitled to rely solely on such representations and warranties as may be
included in the definitive agreement relating to the possible transaction,
subject to the terms and conditions of such agreement.
6. If you determine not to proceed with the transaction, you will
promptly inform the Company of that decision and, in that case, and at any time
upon the written request of the Company, you will either (i) promptly destroy
all copies of the Evaluation Material in your or your Representatives'
possession and confirm such destruction to us in writing, or (ii) promptly
deliver to the Company at your own expense all copies of the Evaluation Material
in your or your Representatives' possession. The redelivery or destruction of
the Evaluation Material shall not relieve you or your Representatives of your
obligations under this letter agreement including with respect to any oral
Evaluation Material.
7. Without prior written consent of the Company, neither you nor any of
your Representatives who are aware of the Evaluation Material or the possible
transaction will, for a one-year period from the date of this agreement, solicit
the employment of or hire any employee of the Company with whom you have had
contact or who become known to you in connection with your consideration of the
possible transaction.
8. You hereby agree to indemnify and hold harmless the Company from any
damage, loss, cost or liability (including legal fees and the cost of enforcing
this indemnity) arising out of or resulting from any unauthorized use or
disclosure by you or your Representatives of the Evaluation Material. You also
acknowledge that money damages would be both incalculable and an insufficient
remedy for any breach of this agreement by you or your Representatives and that
any such breach would cause the Company irreparable harm. Accordingly, you also
agree that in the event of any breach or threatened breach of this agreement,
the Company, in addition to any other remedies at law or in equity it may have,
shall be entitled, without the requirement of posting a bond or other security,
to equitable relief, including injunctive relief and specific performance.
9. You acknowledge and agree that (i) the Company is free to conduct
the process leading up to a possible transaction as the Company, in its sole
discretion, may determine (including. without limitation, by negotiating with
8
any prospective investor(s) or buyer(s) and entering into a preliminary or
definitive agreement without prior notice to you or any other person), (ii) the
Company reserves the right, in its sole discretion, to change the procedures
relating to the Company's consideration of a possible transaction at any time
without prior notice to you or any other person, to reject any and all proposals
made by you or any of your Representatives with regard to a possible
transaction, and to terminate discussions and negotiations with you at any time
and for any reason, and (iii) unless and until a definitive agreement between
the Company and you with respect to any transaction referred to in the first
paragraph of this agreement has been executed and delivered, neither the Company
nor you will be under any legal obligation of any kind whatsoever with respect
to such a transaction by virtue of this or any written or oral expression with
respect to such a transaction by any of our Representatives except, in the case
of this letter, for the matters specifically agreed to herein. This agreement
contains the entire agreement between you and us concerning the subject matter
hereof. No modifications of this agreement or waiver of the terms and conditions
hereof will be binding upon you or us, unless approved in writing by each of you
and us.
10. This agreement shall expire five years after the date hereof.
11. This agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to the principles of
conflicts of laws thereof.
12. If any provision of this agreement shall, for any reason, be
adjudged by any court of competent jurisdiction to be invalid or unenforceable,
such judgment shall not affect, impair or invalidate the remainder of this
agreement but shall be confined in its operation to the provision of this
agreement directly involved in the controversy in which such judgment shall have
been rendered. This agreement may be executed in counterparts, each of which
shall be deemed to be an original, but both of which shall constitute the same
agreement.
13. You agree and consent to personal jurisdiction and service and
venue in any federal or state court within the State of New York having subject
matter jurisdiction, for the purposes of any action, suit or proceeding arising
out of or relating to this agreement.
If you are in agreement with the foregoing, please sign and return one
copy of this letter, which thereupon will constitute our agreement with respect
to the subject matter hereof
Very truly yours,
PURE WORLD, INC.
By: /s/Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Chairman
Accepted and agreed to as of the date hereof:
Naturex, Inc.
By: /s/Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xx. Xxxxxxx Xxxxxxxx
Title: President
