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EXHIBIT 13
CONFIDENTIALITY AGREEMENT, DATED JUNE 30, 1997
CONFIDENTIALITY AGREEMENT
June 30, 1997
FUJITSU LIMITED
0-0, Xxxxxxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx 000
Xxxxx
Dear Sirs:
In connection with your consideration of a possible transaction involving
Xxxxxx Corporation (the "Company"), the Company will make available to you
certain information concerning the business, financial condition, operations,
assets and liabilities of the Company. As a condition to such information being
furnished to you and your Representatives (as defined below), you agree to treat
in accordance with the provisions of this letter agreement any information
concerning the Company that is furnished to you or to your Representatives on or
after the date of this letter in connection with such possible transaction by or
on behalf of the Company, regardless of the manner in which it is furnished
(herein collectively referred to as the "Evaluation Material"). For purposes of
this letter agreement, (i) "Representative" shall mean, as to any person, its
directors, officers, employees, agents and advisors (including, without
limitation, financial advisors, attorneys and accountants); and (ii) "person"
shall be broadly interpreted to include, without limitation, any corporation,
company, partnership, other entity or individual.
The term "Evaluation Material" shall include all notes, analyses or other
documents prepared by you or your Representatives which contain any Evaluation
Material furnished to you or your 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 you
or your Representatives, (ii) was within your possession on a non-confidential
basis prior to its being furnished to you by or on behalf of the Company
pursuant hereto, provided that the source of such information was not known by
you to be bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the Company
with respect to such information or (iii) was or becomes available to you on a
non-confidential basis from a source other than the Company or any of its
Representatives, provided that such source was not known by you to be bound by a
confidentiality agreement with or other
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contractual, legal or fiduciary obligation of confidentiality to the Company or
any other party with respect to such information.
Except as required by law, you hereby agree (x) that you and your
Representatives shall use the Evaluation Material solely for the purpose of
evaluating a possible transaction between the Company and you, and (y) that the
Evaluation Material will be kept confidential and that you and your
Representatives will not disclose or reveal any of the Evaluation Material in
any manner whatsoever, provided, however, that (i) you may make any disclosure
of such information to which the Company gives its prior written consent and
(ii) any of such information may be disclosed to your Representatives who need
to know such information for the purpose of evaluating a possible transaction
with the Company. You further agree to take such steps to protect and maintain
the security and confidentiality of the Evaluation Material as you would in the
case of your own confidential business information. You shall direct your
Representatives to observe the terms of this letter agreement and shall be
responsible for any breach of the terms of this letter agreement by your
Representatives.
The parties expressly confirm and agree that no public disclosure with
respect to any discussions or negotiations taking place as referred to herein is
now required by reasons of securities laws or similar requirements related to
general disclosure and in the event either party determines that such disclosure
is required in the future, no such disclosures shall be made unless and until
such party consults with the other party regarding the necessity and form of any
such disclosure. You hereby agree that you shall not disclose to any person any
information about a possible transaction between the Company and you, or the
terms or conditions or any other facts relating thereto, including, without
limitation, the fact that discussions are taking place with respect thereto or
the status thereof, or the fact that Evaluation Material has been made available
to you or your Representatives, except for the disclosure of such information as
may be required in filings under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or by corresponding statutes existing under the laws of
Japan, if and to the extent you are required to make such disclosure pursuant to
the Exchange Act, such corresponding statute, or the rules and regulations
promulgated under either of them, provided, however, that prior to any such
disclosure, you shall first give the Company a reasonable opportunity to review
the proposed disclosure and comment thereon.
To the extent that any Evaluation Material may include material subject to
the attorney-client privilege, work product doctrine or any other applicable
privilege concerning pending or threatened legal proceedings or governmental
investigations, the parties understand and agree that they have a commonality of
interest with respect to such matters and it is their desire, intention and
mutual understanding that the sharing of such material is not intended to, and
shall not, waive or diminish in any way the confidentiality of such material or
its continued protection under the attorney-client privilege, work product
doctrine or other applicable privilege. All Evaluation Material provided by a
party that is entitled to protection under the attorney-client privilege, work
product doctrine or other applicable privilege shall remain entitled to such
protection under these privileges, this letter agreement, and under the joint
defense doctrine. Nothing in this
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letter agreement obligates any party to reveal material subject to the
attorney-client privilege, work product doctrine or any other applicable
privilege.
If you or any of your Representatives are requested or required by oral
questions (that the court orders to be answered), interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process, to disclose any part of the Evaluation Material, you or your
Representatives, as the case may be, will (i) promptly notify the Company of
each such request or requirement and the documents requested thereby, so that
the Company may seek an appropriate protective order or other remedy and/or
waive compliance by you or your Representatives, as the case may be, with the
provisions of this Agreement, and (ii) consult with the Company on the
advisability of tasking legally available steps to resists or narrow such
request or requirement. If, in the absence of such a protective order or receipt
of such a waiver, you or your Representative is nonetheless in the written
opinion of your outside counsel compelled to disclose, by mandatorily applicable
law, any part of the Evaluation Material, you may disclose such Evaluation
Material without liability under this Agreement, except that in that event, if
the circumstances so permit, you shall give the Company written notice of the
Evaluation Material to be so disclosed as far in advance of its disclosure as is
lawful and practicable, and you shall use your best efforts to obtain an order
or other reliable assurances that confidential treatment will be accorded to the
portion of the Evaluation Material so required to be disclosed.
If either party hereto shall determine that it does not wish to proceed
with the Proposed Transaction, such party shall promptly advise the other party
of that decision. In that case, or in the event that the Company, in its sole
discretion, so requests or the Proposed Transaction is not consummated by you,
you shall, upon the Company's written request, promptly deliver to the Company
all Evaluation Material, and, at your election, return or destroy (provided that
any such destruction shall be certified by one of your duly authorized officers)
all copies, reproductions, summaries, analyses or extracts thereof or based
thereon in your possession or in the possession of any of your Representatives.
You shall not be entitled to rely on the completeness of any Evaluation
Material, but shall be entitled to rely solely on such representations and
warranties as may be made in any final acquisition agreement relating to a
transaction between you and the Company, subject to the terms and conditions of
such agreement.
You hereby acknowledge that you are aware and will advise your
Representatives that the United States securities laws prohibit any person who
has received from an issuer material, nonpublic information concerning the
matters which are the subject of this letter agreement 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. Your obligation to keep
confidential any Evaluation Material shall terminate five (5) years after the
date hereof.
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You agree that unless and until a definitive agreement regarding a
transaction between the Company and you 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 letter agreement except for
the matters specifically agreed to herein. The parties further acknowledge and
agree that they each reserve the right, in their sole discretion, to reject any
and all proposals that might be made by the other party or any of its
Representatives with regard to a transaction between the parties, and to
terminate discussions and negotiations with the other party at any time.
It is understood and agreed that this letter agreement is not intended to
modify any obligations that you or any of your officers, directors, employees,
agents or controlling persons may have under applicable law as a director or
stockholder of the Company.
It is understood and agreed that no failure or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege hereunder.
It is further understood and agreed that money damages would not be a
sufficient remedy for any material breach of this letter agreement by you or of
any of your Representatives, and that the Company shall be entitled to equitable
relief, including injunction and specific performance, as a remedy for any such
breach.
This letter agreement shall be governed by and construed in accordance
with the laws of the State of California applicable to agreements made and to be
performed within such state.
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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 you and the Company.
Very truly yours,
XXXXXX CORPORATION
/s/ Xxxx X. Xxxxx
By: Xxxx X. Xxxxx
Title: Chairman, President & CEO
Accepted and agreed as of the
date first written above:
FUJITSU LIMITED:
By: /s/ Xxxxxxx Xxxxxx
Title: Member of the Board
