Exclusivity and Confidentiality Agreement
Exhibit (d)(2)
March 26, 2010
Xx. Xxxxxx Xxxxxxx
H.I.G. Middle Market LLC
0000 Xxxxxxxx Xxx Xxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Dear Xx. Xxxxxxx:
In connection with your consideration of a possible transaction
involving Matrixx Initiatives, Inc. (the “Company”),
the Company is prepared to make available to you certain
information concerning its business, financial condition,
operations, assets, and liabilities. As a condition to such
information being furnished to you and your directors, officers,
employees, Primus Therapeutics, Inc., agents, or advisors
(including, without limitation, your attorneys, accountants,
consultants, bankers, and financial advisors) (collectively the
“Representatives”), you agree to treat any information
concerning the Company (whether prepared by you, your
Representatives, or otherwise and irrespective of the form of
communication) that has been or will be furnished to you or your
Representatives by or on behalf of the Company (herein
collectively referred to as the “Evaluation Material”)
in accordance with the provisions of this letter agreement, and
to take or abstain from taking certain other actions hereinafter
set forth.
1. The term “Evaluation Material” shall be deemed
to include all notes, analyses, compilations, studies,
interpretations, or other documents prepared by you or your
Representatives, that contain, reflect, or are based upon, in
whole or in part, the information furnished to you or your
Representatives pursuant hereto. The term “Evaluation
Material” does not include information that (a) is or
becomes generally available to the public other than as a result
of an unauthorized disclosure by you or your Representatives;
(b) was within your possession prior to its being furnished
to you or your Representatives pursuant hereto, provided that
the source of such information was not known by you or your
Representatives 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;
(c) becomes available to you on a non-confidential basis
from a source other than the Company or any of its
Representatives, provided that, to your knowledge, such source
is not bound by a confidentiality agreement with, or other
contractual, legal, or fiduciary obligation of confidentiality
to, the Company with respect to such information; (d) is
independently developed by you without violating any of your
obligations under this letter agreement; or (e) is
disclosed by you to others in accordance with the terms of prior
written authorization of the Company.
2. You agree that you and your Representatives shall use
the Evaluation Material solely for the purpose of evaluating a
possible transaction between the Company and you, that the
Evaluation Material will be kept confidential, and that you and
your Representatives will not disclose any of the Evaluation
Material in any manner whatsoever; provided, however, that
(a) you may make any disclosure of such information to
which the Company gives its prior written consent; and
(b) any of such information may be disclosed to your
Representatives who need to know such information for the sole
purpose of evaluating a possible transaction with the Company
(it being understood that, before disclosing the Evaluation
Material or any portion thereof to such Representatives, you
will inform them of the confidential nature of the Evaluation
Material and obtain their agreement to be bound by this letter
agreement and not to disclose such information to any other
person). In any event, you shall be responsible for any breach
of this letter agreement by any of your Representatives and
agree, at your sole expense, to take all reasonable measures
(including, but not limited to, court proceedings) to restrain
your Representatives from prohibited or unauthorized disclosure
or use of the Evaluation Material.
3. All requests by you or any of your Representatives for
Evaluation Material or meetings with the Company’s
personnel must be made through Xxxx Xxxxxx, the Company’s
President and Chief Executive Officer
(602-385-8859)
or Xxx Xxxxxx, the Company’s Executive Vice President and
General Counsel
(602-385-8890)
(each, a “Company Contact”). Without the prior written
consent of a Company Contact, neither you nor your
Representatives will initiate or cause to be initiated (other
than through a Company Contact) any communication with any
Company employee concerning the Evaluation Material or the
possible transaction. In addition, you agree that, prior to the
time of a public announcement by the Company that the Company
has entered into a definitive agreement with a third party
relating to a transaction in which the third party will acquire
all of the outstanding capital stock of the Company, without the
prior written consent of the Company, neither you nor your
Representatives will disclose to any other person the fact that
the Evaluation Material has been made available to you, that
discussions or negotiations are taking place concerning a
possible transaction involving the Company and you, or any of
the terms,
conditions, or other facts with respect thereto (including the
status thereof), except to the extent required to accomplish the
purposes herein or, unless in the opinion of your counsel, such
disclosure is required by law or the Company provides you with
written consent, and then only with as much prior written notice
to the Company as is practical under the circumstances. The term
“person” as used in this letter agreement shall be
broadly interpreted to include the media and any corporation,
partnership, association, group, individual, or entity.
4. In the event that you or any of your Representatives is
requested or required (by deposition, interrogatories, requests
for information or documents in legal proceedings, subpoena,
civil investigative demand, or other similar process) to
disclose any of the Evaluation Material, you shall provide the
Company with prompt written notice of any such request or
requirement so that the Company may seek a protective order or
other appropriate remedy
and/or waive
compliance with the provisions of this letter agreement. If, in
the absence of a protective order or other remedy or the receipt
of a waiver by the Company, you or any of your Representatives
are nonetheless, in the opinion of your counsel, legally
compelled to disclose Evaluation Material to any tribunal, you
or your Representative may, without liability hereunder,
disclose to such tribunal only that portion of the Evaluation
Material that such counsel advises is legally required to be
disclosed, provided that you exercise your best efforts to
preserve the confidentiality of the Evaluation Material,
including, without limitation, by cooperating with the Company
to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the
Evaluation Material by such tribunal.
5. If you decide that you do not wish to proceed with a
transaction with the Company, you will promptly inform the
Company of that decision. In that case, or at any time, upon the
written request of the Company for any reason, you will promptly
deliver to the Company all documents (and all copies thereof)
furnished to you or your Representatives by or on behalf of the
Company pursuant hereto. In the event of such a decision or
request, all other Evaluation Material prepared by you or your
Representatives shall be destroyed and no copy thereof shall be
retained. To the extent you destroy Evaluation Material prepared
by you or your Representatives, you will certify in writing to
the Company that such destruction has been completed promptly
after such destruction has been completed. Notwithstanding the
return or destruction of the Evaluation Material, you and your
Representatives will continue to be bound by your obligations of
confidentiality and other obligations hereunder.
6. You understand and acknowledge that neither the Company
nor any of its Representatives makes any representation or
warranty, expressed or implied, as to the accuracy or
completeness of the Evaluation Material. You agree that neither
the Company nor any of its Representatives shall have any
liability to you or to any of your Representatives relating to
or resulting from the use of the Evaluation Material. Only those
representations or warranties that are made in a final
definitive agreement regarding the transaction contemplated
hereby, when, as, and if executed, and subject to such
limitations and restrictions as may be specified therein, will
have any legal effect.
7. In consideration of the Evaluation Material being
furnished to you hereunder, you agree that for a period of one
(1) year from the date hereof, neither you nor any of your
affiliates will solicit for employment, without obtaining the
Company’s prior written consent, any of the current
officers or employees of the Company. The term “solicit to
employ” does not include any job fairs or advertising to
fill one or more positions on a basis consistent with past
practice.
8. You further agree that, without the prior written
consent of the Company’s Board of Directors until the
earlier of (i) one (1) year from the date hereof, and
(ii) the time of a public announcement by the Company that
the Company has entered into a definitive agreement with a third
party relating to a transaction in which the third party will
acquire all of the outstanding capital stock of the Company, at
which time all of the provision of this paragraph 8 will be
null and void, neither you nor any of your affiliates (as such
term is defined in
Rule 12b-2
of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), acting alone or as part of a group,
will:
(a) Acquire, propose, or offer to acquire, or agree to
acquire, directly or indirectly, by purchase or otherwise, any
securities or direct or indirect rights to acquire any
securities of the Company or any of its subsidiaries, or of any
successor to or person in control of the Company, or any assets
of the Company or any of its subsidiaries or divisions or of any
such successor or controlling person;
(b) Make, or in any way participate, directly or
indirectly, in any “solicitation” or
“proxies” (as such terms are used in the rules of the
Securities and Exchange Commission) to vote or seek to advise or
influence any person or entity with respect to the voting of any
securities of the Company or otherwise seek to control or
influence the management of the Company or its Board of
Directors;
(c) Make any public announcement, or submit a proposal
(with or without conditions) with respect to any extraordinary
transaction involving the Company or any of its securities or
assets, or take any action that might force
the Company to make a public announcement or take any action
designed to or which can reasonably be expected to require the
Company to make a public announcement, in both cases regarding
the matters set forth in clauses (a)-(b); or
(d) Form, join, or in any way participate in a
“group” as defined in Section 13(d)(3) of the
Exchange Act in connection with any of the foregoing
clauses (a) through (c) of this Paragraph 8.
You acknowledge that you are aware, and will advise your
Representatives who are informed of the matters that are the
subject of this letter agreement, of the restrictions imposed by
the United States securities laws on the purchase or sale of
securities by any person who has received material, non-public
information from the issuer of such securities and on the
communication of such information to any person when it is
reasonably foreseeable that such other person is likely to
purchase or sell securities in reliance upon such information.
9. You agree that unless and until a definitive agreement
regarding a transaction between the Company and you has been
executed and delivered, H.I.G. and the Company will be under no
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. You further acknowledge
and agree that the Company reserves the right, in its sole
discretion, to reject any and all proposals made by you or any
of your Representatives with regard to a transaction between the
Company and you and to terminate discussions and negotiations
with you at any time.
10. All modifications, waivers of, and amendments to this
Agreement must be in writing and signed by the Company and you.
11. This letter agreement shall be binding upon your
successors and assigns and shall inure to the benefit of, and be
enforceable by, the Company’s successors and assigns.
12. The provisions of this letter agreement shall be
severable in the event that any of the provisions hereof are
held by a court of competent jurisdiction to be invalid, void,
or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law.
13. It is 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 thereof or the exercise of any other right, power, or
privilege hereunder.
14. It is further understood and agreed that money damages
would not be a sufficient remedy for any breach of this letter
agreement by you or 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. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this letter agreement but shall be in
addition to all other remedies available at law or equity. In
the event of litigation relating to this letter agreement, if a
court of competent jurisdiction determines that you or any of
your Representatives have breached this letter agreement, then
you shall be liable and pay to the Company the reasonable legal
fees incurred by the Company in connection with such litigation,
including any appeal therefrom.
15. This letter agreement shall be governed by and
constructed in accordance with the laws of the State of
Delaware. This letter agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement.
16. Nothing in this Agreement shall be binding upon, or
restrict the activities of, any of H.I.G.’s portfolio
companies, investment professionals or affiliated investment
funds that do not receive Confidential Information/Evaluation
Material hereunder and are not acting under the direction of any
person or entity who receives such Confidential Information.
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.
Sincerely,
MATRIXX INITIATIVES, INC.
| By: |
/s/ Xxxxxx
X. Xxxxxx
|
Xxxxxx X. Xxxxxx
Executive Vice President, Business Development and General
Counsel
Agreed and accepted on this 26th
day of March, 2010
day of March, 2010
H.I.G. MIDDLE MARKET LLC
| By: |
/s/ Xxxxxx
Xxxxxxx
|
Name: Xxxxxx Xxxxxxx
| Title: | Principal |
