October 8th, 1999
Xx. Xxxxx Xxxxxxxxx
Vice President
Wind Point Partners
Xxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Dear Xx. XxXxxxx:
CONFIDENTIALITY AGREEMENT
This will confirm our understanding with you that we shall treat any
information concerning Serengeti Eyewear, Inc. (the "Company") (whether
prepared by the Company, its advisors or otherwise) which is furnished to us
by or on behalf of the Company and identified in writing as confidential to
the Company (herein collectively referred to as the "Evaluation Material") in
accordance with the provisions of this letter and take or abstain from taking
certain other actions as set forth below.
We agree that the Evaluation Material shall be used solely for the purpose of
evaluating a possible transaction between the Company and us, and that such
information shall be kept confidential by us and our advisors; provided,
however, that (i) any of such information may be disclosed to our officers
and employees and representatives of our advisors who need to know such
information for the purpose of evaluating any such possible transaction
between the Company and us (it being understood that our officers and
employees and representatives of our advisors shall be informed by us of the
confidential nature of such information and shall be directed by us to treat
such information confidentially), (ii) any such disclosure of such
information may be made to which the Company consents in writing; and (iii)
any of such information may be disclosed when such disclosure is required by
a court having applicable jurisdiction.
In the event that we do not proceed with the transaction which is the subject
of this letter within a reasonable time, we shall redeliver to the Company
all written Evaluation Material and shall not retain any copies, in whole or
in part of such written material, except that a single copy of the Evaluation
Material may be retained for record purposes by our legal counsel.
Subject to our observance of the confidentiality obligation set forth above,
nothing in this letter shall prevent us from evaluating a possible investment
in and/or collaboration with, or entering into any transaction with
(including an investment in), a company whose business is similar to or
competitive with the business of the Company. Please note that we deal with
many companies, some of which may, independently of us, pursue similar or
competitive paths regarding their products or services, technology and/or
market development plans to those which are or may be pursued by the Company.
The occurrence or existence of such similar or competitive activities shall
not by itself be cause for any action or allegation by the Company that we
have failed to observe our confidentiality obligation set forth above.
The term "Evaluation Material" does not include information which (i) is
already in our possession, provided that such information is not known by us
to be subject to another confidentiality agreement with or other obligation
of secrecy to the Company or another party, or (ii) is or becomes generally
available to the public other than as a result of a disclosure by us or our
directors, officers, employees, agents or advisors, or (iii) is or becomes
available to us on a non-confidential basis from a source other than the
Company or its advisors, provided that such source is not known by us to be
bound by a confidentiality agreement with or other obligation of secrecy to
the Company or another party.
Unless and until a definitive agreement between the Company and us with
respect to the transaction which is the subject of this letter has been
executed and delivered, except for the matters specifically agreed to in
this letter, neither the Company nor we shall be under a legal obligation of
any kind whatsoever with respect to such a transaction by virtue of this
letter or any written or oral expression with respect to such a transaction
by any of the Company's or our directors, officers, employees, agents or any
other representatives or the Company's or our advisors or representatives
thereof.
Very truly yours,
WIND POINT PARTNERS
By: /s/ Salam X. Xxxxxxxxx
-----------------------
Salam X. Xxxxxxxxx
Vice President
Receipt of this letter is hereby confirmed and the terms set forth above are
hereby agreed to by the Company as of the 10th day of October, 1999.
Serengeti Eyewear, Inc.
By: /s/ Xxxxxxx X. XxXxxxx
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Xx. Xxxxxxx X. XxXxxxx
Chief Financial Officer
