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Exhibit 4
CONFIDENTIALITY AGREEMENT
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Date: September 5, 1996
Alex. Xxxxx & Sons Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Dear Xx. Xxxxxxx:
In connection with our consideration of a possible transaction with
Sudbury, Inc. ("Sudbury" or the "Company"), we have requested information
concerning the Company. As a condition thereof, we agree to treat any
information concerning the Company and its subsidiaries (whether prepared by the
Company, its advisors, or otherwise) which is furnished to us by or on behalf of
the Company (collectively, the "Evaluation Material") in accordance with the
provisions of this letter and to take or abstain from taking certain other
actions hereto set forth. The term "Evaluation Material" does not include
information which (i) is already in our possession, provided that such
information is not subject to another confidentiality agreement with or other
obligation of secrecy to the Company or another party, (ii) 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) 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 bound by a confidentiality agreement
with or other obligation of secrecy to the Company or another party.
We hereby agree that the Evaluation Material will be used solely for
the purposes of evaluating a possible transaction between the Company and us,
and that such information will be kept confidential by us and our directors,
officers, employees, agents, and advisors (including attorneys and accountants)
except as required by law or court of competent jurisdiction, provided, however,
that we will promptly notify the Company and Alex. Xxxxx & Sons Incorporated
("Alex. Xxxxx") at any time we are served with any legal process seeking, or we
become obligated to disclose such information by law or by court order (as will
be evidenced by written opinion of our counsel), so that the Company may seek an
appropriate protective order. Furthermore, with regard to the Evaluation
Material, (i) any of such information may be disclosed to our directors,
officers, employees, agents 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 such directors, officers,
employees, agents and representatives shall be informed by us of the
confidential nature of such information and shall be directed by us to treat
such information confidentially, and we shall be responsible for any
unauthorized disclosure or use of the Evaluation Material by them in a manner
not contemplated by this Agreement), and (ii) any disclosure of such information
may be made to
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which the Company consents in writing. In addition, without prior written
consent of the Company, we will not, and will direct such directors, officers,
employees and representatives not to, disclose to any other person either the
fact that discussions or negotiations are taking place concerning a possible
transaction between the Company and us or any of the terms, conditions or facts
with respect to any such possible transaction, including the status thereof.
We understand that, although the Company has endeavored to include in
the Evaluation Material information known to it which it believes to be relevant
for the purposes of our investigation, neither the Company nor any of its
representatives or advisors have made or make any representation or warranty as
to the accuracy or completeness of the Evaluation Material. We agree that
neither the Company nor its representatives or advisors shall have any
liability to us or any of our representatives or advisors resulting from the
use of the Evaluation Material.
We agree that unless and until a definitive agreement between the
Company and us with respect to a possible transaction has been executed and
delivered, neither the Company nor we will be under any 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 its
directors, officers, employees, agents or any other representatives or its
advisors or representatives thereof except, in the case of this letter, for the
matters specifically agreed to herein. The agreement set forth in this
paragraph may be modified or waived only by a separate written agreement by the
Company and us expressly modifying or waiving such agreement.
We agree not to initiate or maintain contact (except for those
contracts made in the ordinary course of business) with any officer, director or
employee of the Company except company CEO, or any of its subsidiaries or with
any customer or supplier or any other party with whom the Company or its
subsidiaries does business regarding the Company or its business, operations,
prospects or finances, except with the express written permission of the
Company. It is understood that Alex. Xxxxx will arrange for appropriate
contracts for due diligence purposes and that Alex. Xxxxx will arrange for
appropriate contacts for due diligence purposes and that Alex. Xxxxx will
arrange the time and manner of such due diligence. Unless otherwise agreed in
writing by the Company, all (i) communications regarding this possible
transaction, (ii) requests for additional information, (iii) requests for
facility tours or management meetings, and (iv) discussions or questions
regarding procedures, will be submitted or directed to Alex. Xxxxx. For a
period of one year from the date hereof, we will not solicit for hire or hire
as an employee or independent contractor any person currently employed by the
Company. We agree that upon the request of the Company, we will promptly return
to the Company any and all company provided Evaluation Material and will cause
our directors, officers, employees, agents, representatives and advisors also
to do so. Such material will include copies, summaries, analysis and extracts
thereof.
The Company shall be entitled to equitable relief including injunction
and shall be entitled to a temporary restraining order and to such other
remedies as may be available under applicable law if we or any of our
representatives breach this letter. This letter shall be governed by, and
construed in accordance with, the laws of the State of Ohio. Any action brought
in connection with this letter shall be brought in courts in the Northern
District of Ohio and we consent to the jurisdiction of such courts. It is
further understood and agreed that no failure or delay by the Company 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 of any right, power or privilege hereunder.
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This letter constitutes the entire agreement of the parties respecting the
subject matter hereof and may not be amended except in a writing signed by both
parties.
Very truly yours,
INTERMET CORP.
By: /s/ Xxxx Xxxxxxxxx
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Title: CEO
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