CONFIDENTIALITY AGREEMENT
This
Agreement (this “Agreement”)
is
made and entered into as of October 24, 2007, by and between Xxxxxx Xxxx
Corporation (the “Company”),
and
each of the entities and natural persons listed on Schedule
A
hereto
(such entities and natural persons and any Ramius Nominee that executes a
joinder to this Agreement, collectively, the “Ramius
Group”)
(each
of the Company and the Ramius Group, a “Party”
to
this
Agreement, and collectively, the “Parties”).
WITNESSETH:
WHEREAS,
in connection with the execution and performance of a Settlement Agreement
between the Parties and certain other parties affiliated with the Ramius Group,
dated October 24, 2007 (the “Settlement
Agreement”),
regarding the nomination of certain persons to the Board of Directors of the
Company (the “Board”)
and
the Ramius Group’s forbearance of certain activities during the Standstill
Period (as defined in the Settlement Agreement), the Company expects to provide
or otherwise make available to either or both of Xxxxxxx Xxxxx and Xxxxxx
Xxxxxxxxxx (the “Ramius
Nominees”)
certain information, including information made available to either or both
Ramius Nominees pursuant to Section 1 of this Agreement, developed by and/or
concerning the Company that is non-public, confidential or proprietary in
nature, including business and financial information concerning the Company
and/or its operations (such information collectively, “Confidential
Information”);
NOW
THEREFORE, in consideration of the agreements, covenants and premises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto hereby agree
as
follows:
1. The
Company hereby agrees that prior to the 2007 Annual Meeting of Stockholders
of
the Company (the “2007
Annual Meeting”),
the
Company will not take any action that the Board considers material without
first
advising a Ramius Nominee regarding such action. The Ramius Nominees shall
use
the Confidential Information solely for the purpose of evaluating the Company
and actions proposed to be taken by the Company, in connection with their
respective preparations to serve as members of the Board if elected at the
2007
Annual Meeting.
2. All
Confidential Information furnished by the Company to a Ramius Party will be
kept
confidential by all Ramius Parties and shall not, without the prior written
consent of the Company, be disclosed by any Ramius Party in any manner
whatsoever, in whole or in part, and shall not be used by any Ramius Party
other
than as necessary for the purpose of evaluating the Company and actions proposed
to be taken by the Company and the Ramius Group’s investment in the Company.
Moreover, each Ramius Party shall reveal the Confidential Information only
to
other Ramius Parties that need to know the Confidential Information for such
purpose, who are informed by the revealing Ramius Party of the confidential
nature of the Confidential Information and who agree to be bound by the terms
and conditions of this Agreement. No Ramius Party shall, without the prior
written consent of the Company, disclose any of the Confidential Information
to
its shareholders, members, other security holders or affiliates, or any of
them,
that are not Ramius Parties. Each member of the Ramius Group shall cause its
Ramius Affiliates to comply with this Agreement. Each member of the Ramius
Group
shall be jointly and severally responsible for any breach of this Agreement
by
any Ramius Party. “Ramius
Affiliates”
means
the directors, officers, managers, agents, representatives (including attorneys,
accountants and financial advisers) and employees of the Company of any member
of the Ramius Group; and “Ramius
Parties”
means
the Ramius Affiliates and the members of the Ramius Group.
1
3. No
Ramius
Party shall, without the prior written consent of the Company, disclose to
any
person the fact that the Confidential Information has been made available by
the
Company to a Ramius Party. The term “person” as used in this Agreement shall be
broadly interpreted to include, without limitation, the media and any
individual, group, corporation, partnership, limited liability company or other
entity, including any government or agency thereof.
4. All
Confidential Information received by a Ramius Party hereunder will be returned
to the Company promptly upon the request of the Company, subject to any
documentation retention policies to which such Ramius Party is subject as
required by law or regulatory authority; provided,
however,
that
any analyses, compilations, studies or other documents prepared by a Ramius
Party based upon or relating to or otherwise constituting Confidential
Information shall be deemed to be Confidential Information and will be, at
the
option of the Company, either destroyed or held by such Ramius Party and kept
confidential and subject to the terms of this Agreement, subject to any
documentation retention policies to which such Ramius Party is subject as
required by law or regulatory authority.
5. No
Ramius
Party will photocopy, reproduce or distribute to others any Confidential
Information received at any time, except for distribution to persons entitled
to
receive Confidential Information hereunder for the purposes contemplated hereby
or with the prior written consent of the Company.
6. Notwithstanding
anything to the contrary contained herein: “Confidential Information” shall not
include information which: (a) is at the time of disclosure or thereafter
becomes generally available to the public other than as a result of a disclosure
by a Ramius Party; (b) was, prior to disclosure by the Company, already in
a
Ramius Party’s possession, provided that the source of such information was, to
such Ramius Party’s knowledge after reasonable inquiry, not bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company or a Company Affiliate; (c) becomes
available to a Ramius Party on a nonconfidential basis from a source (other
than
the Company or a Company Affiliate) that is, to such Ramius Party’s knowledge
after reasonable inquiry, not bound by a confidentiality agreement with or
other
contractual, legal or fiduciary obligation of confidentiality to the Company
or
a Company Affiliate, and is not, to such Ramius Party’s knowledge after
reasonable inquiry, under an obligation to the Company or a Company Affiliate
not to transmit the information to such Ramius Party; or (d) was independently
developed by a Ramius Party or a Ramius Affiliate without reference to or use
of
the Confidential Information. “Company
Affiliates”
means
the directors, officers, agents, representatives (including attorneys,
accountants and financial advisers) and employees of the Company.
7. Each
member of the Ramius Group acknowledges that neither the Company nor any Company
Affiliate makes any representation or warranty as to the accuracy or
completeness of the Confidential Information furnished by it to any Ramius
Party. Neither the Company nor any Company Affiliate shall have any liability
to
any Ramius Party hereunder resulting from the use of the Confidential
Information by a Ramius Party.
8. In
the
event that any Ramius Party or any person to whom any Ramius Party transmits
Confidential Information becomes legally required to disclose any Confidential
Information furnished to it, the Ramius Group will, to the extent legally
permissible, provide the Company with prompt notice thereof so that the Company
may, if available, promptly 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, or the Company waives
compliance with the provisions of this Agreement, the Ramius Party (or the
person to whom the Ramius Party transmitted such Confidential Information)
may,
without liability hereunder, disclose only that portion of the Confidential
Information furnished hereunder which, based upon the advice of counsel of
such
Ramius Party, the disclosure of which is legally required and will exercise
its
reasonable best efforts to obtain a protective order or other reliable assurance
that confidential treatment will be accorded the Confidential
Information.
2
9. Each
member of the Ramius Group acknowledges and agrees that irreparable injury
to
the Company would occur in the event any Ramius Party obligations under this
Agreement were not performed in accordance with the specific terms of this
Agreement or a Ramius Party otherwise breached this Agreement and that such
injury would not be adequately compensable in damages. It is accordingly agreed
by each member of the Ramius Group that the Company shall be entitled to
specific enforcement of (without the necessity of posting a bond or other
security or proving actual damages), and injunctive relief to prevent any
violation of (without the necessity of posting a bond or other security or
proving actual damages), the terms of this Agreement by any Ramius Party and
that no Ramius Party will take any action, directly or indirectly, in opposition
to the Company seeking such relief on the grounds that any other remedy or
relief is available at law or in equity. This Section 9 shall not in any way
affect a Party’s right to exercise its rights at law. Each member of the Ramius
Group, jointly and severally, shall reimburse, indemnify and hold harmless
the
Company and the Company Affiliates against any and all costs and liabilities
arising from the breach of any provision of this Agreement by any Ramius Party.
10. The
terms, conditions and provisions of this Agreement shall apply only with respect
to Confidential Information received by a Ramius Party prior to the earlier
of
(i) the election of the Ramius Nominees to the Board or (ii) the conclusion
of
the Company’s 2007 Annual Meeting.
11. Each
member of the Ramius Group hereby irrevocably appoints RCG Starboard Advisors,
LLC as such member’s attorney-in-fact and representative (the “Ramius
Representative”),
in
such member’s place and stead, to do any and all things and to execute any and
all agreements, instruments and other documents and any amendments,
modifications and waivers thereto and hereto and to give and receive any and
all
notices or instructions in connection with this Agreement and the transactions
contemplated hereby. The Company shall be entitled to rely, as being binding
on
each member of the Ramius Group, upon any action taken by the Ramius
Representative or upon any document, notice, instruction or other writing given
or executed by the Ramius Representative. Each member of the Ramius Group
acknowledges and agrees that each agreement, covenant or other obligation of
the
Ramius Group hereunder shall be binding on such member of the Ramius
Group.
12. Each
member of the Ramius Group acknowledges and agrees that it is aware of the
restrictions imposed by the United States securities laws on the purchase or
sale of securities by any person who has received material nonpublic information
from the issuer of securities, and on the communication of such information
to
any other person when it is reasonably foreseeable that such other person is
likely to purchase or sell such securities in reliance upon such
information.
13. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without reference to its conflict of law rules.
14. This
Agreement constitutes the entire agreement between the Parties with respect
to
the subject matter hereof and supersedes all prior agreements understandings,
both written and oral, among the Parties with respect to the subject matter
hereof. No modifications of this Agreement can be made except in writing signed
by an authorized representative of each of the Company and each member of the
Ramius Group.
3
15. If
at any
time subsequent to the date hereof, any provision of this Agreement shall be
held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon
the
legality or enforceability of any other provision of this
Agreement.
16. This
Agreement and any amendments hereto may be executed and delivered in one or
more
counterparts, and by the different parties hereto in separate counterparts,
each
of which when executed shall be deemed to be an original, but all of which
taken
together shall constitute one and the same agreement, and shall become effective
when counterparts have been signed by each party hereto and delivered to the
other parties hereto, it being understood that all parties need not sign the
same counterpart. In the event that any signature to this Agreement or any
amendment hereto is delivered by facsimile transmission or by e-mail delivery
of
a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof. At the request of any party each other
party shall promptly re-execute an original form of this Agreement or any
amendment hereto and deliver the same to the other party. No party hereto shall
raise the use of a facsimile machine or e-mail delivery of a “.pdf” format data
file to deliver a signature to this Agreement or any amendment hereto or the
fact that such signature was transmitted or communicated through the use of
a
facsimile machine or e-mail delivery of a “.pdf” format data file as a defense
to the formation or enforceability of a contract, and each party hereto forever
waives any such defense.This Agreement embodies the entire agreement between
the
Parties and supersedes any and all prior or contemporaneous oral or written
agreements, arrangements and understandings concerning the matters provided
for
herein.
17. Any
notices, consents, determinations, waivers or other communications required
or
permitted to be given under the terms of this Agreement must be in writing
and
will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided confirmation
of
transmission is mechanically or electronically generated and kept on file by
the
sending party); or (iii) one (1) Business Day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If
to the
Company:
Xxxxxx
Xxxx Corporation
000
Xxxxxxxxxxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxx
Facsimile:
000-000-0000
With
a
copy to:
Xxxxxx
Xxxxxx Xxxxxxxx LLP
000
X.
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention:
Xxxxx Xxxxxxx, Esq. and Xxxx X. Xxxx, Esq.
Facsimile:
000-000-0000
4
If
to the
Ramius Group or any member of the Ramius Group:
Ramius
Capital Group, L.L.C.
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx
Facsimile:
000-000-0000
With
a
copy to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
18. This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and assigns. No Party shall assign this Agreement
or
any rights or obligations hereunder without, with respect to any member of
the
Ramius Group, the prior written consent of the Company, and with respect to
the
Company, the prior written consent of the Ramius Representative.
19. The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party. Unless the context otherwise requires, (a) all
references to Sections or Schedules are to Sections or Schedules contained
in or
attached to this Agreement, (b) words in the singular or plural include the
singular and plural and pronouns stated in either the masculine, the feminine
or
neuter gender shall include the masculine, feminine and neuter, and (c) the
use
of the word “including” in this Agreement shall be by way of example rather than
limitation.
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5
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day
and year first above written.
|
XXXXXX
XXXX CORPORATION
|
|||
|
By:
|
|||
|
Name:
|
Xxxxxx
X. Xxxxxxxx
|
||
|
Title:
|
Chief
Executive Officer,
President,
Secretary
|
||
|
PARCHE,
LLC
|
RCG
STARBOARD ADVISORS, LLC
|
||
|
By:
|
RCG
Starboard Advisors, LLC, its managing member
|
By:
|
Ramius
Capital Group, L.L.C., its sole
member
|
|
STARBOARD
VALUE AND OPPORTUNITY MASTER FUND LTD.
|
RAMIUS
CAPITAL GROUP, L.L.C.
By:
C4S & Co., L.L.C.,
as
managing member
|
|
|
By:
|
RCG
Starboard Advisors, LLC, its
investment
manager
|
C4S
& CO., L.L.C.
|
|
By:
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
XXXXX
X. XXXX
|
|
XXXXXXX
X. XXXXX
|
||
|
Individually
and as attorney-in-fact for Xxxxxx Xxxxxxxxxx
|
6
|
By:
Starboard Value and Opportunity Master Fund Ltd.
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
Parche, LLC
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
RCG Enterprise, Ltd
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
RCG Starboard Advisors, LLC
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
Ramius Capital Group, L.L.C.
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
C4S & CO., L.L.C.
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
|
7
SCHEDULE
A
The
Ramius Group
|
Parche,
LLC
|
|
Starboard
Value and Opportunity Master Fund Ltd.
|
|
RGC
Starboard Advisors, LLC
|
|
Ramius
Capital Group, L.L.C.
|
|
C4S
& CO., LLC
RCG
Enterprise, Ltd
|
|
Xxxxxx
Xxxxxxxxxx
|
|
Xxxxx
X. Xxxx
|
|
Xxxxxxx
X. Xxxxx
|
8
