EXHIBIT 3
ROYAL BANK OF CANADA
Royal Bank Plaza
MUTUAL CONFIDENTIALITY AGREEMENT 000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0 Xxxxxx
(000) 000-0000
CONFIDENTIAL
as of January 31, 2000
Prism Financial Corporation
000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
President & CEO
Dear Sirs:
Re: Confidentiality and Non-Disclosure Covenants
In connection with a possible transaction (the "Transaction") between Royal
Bank of Canada or any of its affiliates and Prism Financial Corporation
(hereinafter individually referred to as the "Party", the "Disclosing Party" or
the "Recipient Party", as the case may be, and collectively referred to as the
"Parties") the Parties are providing to each other certain information that is
non-public, confidential and/or proprietary in nature concerning their
respective business, operations and assets. In consideration of the Parties
providing such information to each other, each Party agrees, for a period of
two years from the date of this agreement, to treat any confidential
information concerning the other Party, whether prepared by or on behalf of
such Party or otherwise identified as confidential information at the time of
disclosure, in accordance with the provisions of this agreement and to take or
abstain from taking certain other actions hereinafter set forth.
1. The term "Confidential Information" includes all information of the
Disclosing Party provided under this agreement provided, however, that
it does not include information which (i) is or becomes generally
available to the public other than as a result of a disclosure by the
Recipient Party, (ii) was within the Recipient Party's possession on a
non-confidential basis prior to its being provided to the Recipient
Party by or on behalf of the Disclosing Party, (iii) is or becomes
available to the Recipient party on a non-confidential basis from a
source other than the Disclosing Party or its Representatives (as
defined below) which source, to the best of the Recipient Party's
knowledge, is not prohibited from disclosing such information by a
legal, contractual or fiduciary obligation, or (iv) is independently
developed by the Recipient Party without the use of the Disclosing
Party's information.
2. The Recipient Party agrees that it shall use the Confidential
Information provided by the Disclosing Party solely for the purpose of
evaluating the Transaction, that such Confidential Information will be
kept confidential by the Recipient Party and that the Recipient Party
will not disclose any of such Confidential Information provided,
however, that (i) the Recipient Party may disclose any of such
Confidential Information to which the Disclosing Party gives its prior
written consent, and (ii) the Recipient Party may disclose any of such
Confidential Information to its directors, officers, employees, agents
or advisors (including, without limitation, attorneys, accountants,
consultants, bankers and financial advisors) as well as those of its
affiliates (hereinafter collectively referred to as the
"Representatives") who need to know such Confidential Information for
the purpose of evaluating the Transaction and who shall be informed of
the confidential nature of such Confidential Information.
3. Each item of the Confidential Information shall remain the exclusive
property of the Disclosing Party. The Recipient Party and its
Representatives shall not use, directly or indirectly, any portion of
such Confidential Information, or any summaries or other information
derived therefrom, or any reproductions thereof, except for the purpose
of evaluating the Transaction.
4. Without the prior written consent of the other Party, neither Party
will disclose to any person that discussions or negotiations are taking
place concerning the Transactions or any of the terms, conditions or
other facts with respect thereto, including the status thereof
("Transaction Information"). The term "person" as used in this
agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual or other entity.
5. In the event that the Recipient Party or its Representatives become
legally compelled (by deposition, interrogatory, request for documents,
subpoena, civil investigative demand or similar process by court order
of a court of competent jurisdiction, or in order to comply with
applicable requirements of any stock exchange, government department or
agency or other regulatory authority, or by requirements of any
securities law or regulations or other legal requirements) to disclose
any of the Confidential Information provided by the Disclosing Party or
any of the Transaction Information, the Recipient Party shall provide
the Disclosing Party with prompt written notice of such requirements so
that the Disclosing Party may seek a protective order or other
appropriate remedy or waive compliance with the terms of this
agreement, which waiver may not be unreasonably withheld. In the event
that such protective order or other remedy is not obtained or that the
Disclosing Party waives compliance with the provisions hereof, the
Recipient Party agrees to provide only that portion of the Confidential
Information provided by the Disclosing Party and Transaction
Information which is legally required and to exercise its reasonable
efforts to obtain assurances that confidential treatment will be
afforded to such Confidential Information and Transaction Information.
6. The Confidential Information provided by the Disclosing Party shall not
be copied, reproduced or summarized in any form, or stored in a
retrieval system or database, by the Recipient Party or its
Representatives without the prior written consent of the Disclosing
Party, except for such copies, reproductions, summaries and storage as
are strictly required for the purpose of evaluating the Transaction, it
being agreed, however, that such copies, reproductions, summaries and
storage shall be accorded the same confidential treatment as the
originals thereof. Upon the Disclosing Party's written request, all
original or copies of the Confidential Information provided by such
Disclosing Party, including that portion of the Confidential
Information that consists of notes, analyses, compilations, studies,
interpretations or other documents prepared by the Recipient Party and
its Representatives, will be promptly destroyed by the Recipient Party
and its Representatives. The destruction shall be certified in writing
to the Disclosing Party by an authorized officer of the Recipient Party
supervising such destruction.
7. The Recipient Party understands that the Disclosing Party has
endeavored to include in the Confidential Information those materials
which it believes to be reliable and relevant for the purpose of
evaluating the Transaction, but the Recipient Party acknowledges that
neither the Disclosing Party nor its Representatives make any
representation or warranty, either express or implied as to the
accuracy or completeness of such Confidential Information.
8. The Recipient Party agrees that in the event of a breach or threatened
breach of this agreement by the Recipient Party or its Representatives,
where irreparable damages would occur to the Disclosing Party with the
amount of potential damages being impossible to ascertain, the
Disclosing Party may, in addition to pursuing any remedies provided by
law, obtain an injunction against the Recipient Party or its
Representatives restraining any such breach or threatened breach of
this agreement or an order of specific performance of this agreement.
9. The Parties agree that unless and until definitive agreement regarding
the Transaction has been executed by the Parties, neither Party will be
under any legal obligation of any kind whatsoever with respect to the
Transaction by virtue of this agreement except for the matters
specifically agreed to in this agreement.
10. Any notices required by this agreement shall be given in hand, sent by
first class mail or forwarded electronically to the applicable address
set forth below. Each Party may from time to time specify as its
address for purposes of this agreement any other address upon giving
ten (10) days written notice thereof to the other Party.
In the case of
Royal Bank of Canada
Xxxxx Xxxx Xxxxx
000 Xxx Xxxxxx
00xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0 Xxxxxx
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
In the case of
Prism Financial Corporation
000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000 000-0000
Attention: Xxxx Xxxxxx
11. This agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns.
12. No amendment to the terms and conditions of this agreement shall be
valid and binding unless made in writing and signed by the Parties. The
Parties agree that if any of the provisions of this agreement become
unenforceable, the remainder of this agreement shall nevertheless
remain binding to the fullest extent possible taking into consideration
the purposes and spirit hereof.
13. This agreement embodies the entire understanding and agreement between
the Parties with respect to the Confidential Information and supersedes
all prior understanding and agreement relating thereto.
14. This agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of
conflicts of law.
Please confirm your agreement to the foregoing by signing and returning one copy
of this letter to the undersigned.
Royal Bank of Canada
Per: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Strategic Initiatives
Accepted and agreed as of the date first written above.
Prism Financial Corporation
Per: /s/ Xxxx X. Filler
-------------------------------------
Name: Xxxx X. Filler
Title: President
