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EXHIBIT (c)(2)
[PEAK LETTERHEAD]
PRIVATE & CONFIDENTIAL
February 19, 1997
Xxxxx Corporation Limited
0 Xxxxx Xxxxxxxx Xxxxx
P.O. Box 78
Toronto, Ontario M5X 1G5
Canada
Gentlemen:
In connection with a possible business combination transaction (the
"Transaction") between Xxxxx Corporation Limited ("Xxxxx") and The Peak
Technologies Group, Inc., (the "Company"), Xxxxx has requested certain
information from the Company. As a condition to furnishing Xxxxx with such
information, the Company is requiring that Xxxxx agree as set forth below, to
treat confidentially such information and any other information (collectively,
the "Evaluation Material") which the Company or any of the Company's
stockholders, directors, officers, employees, agents or representatives,
including attorneys, accountants and financial advisors, (collectively,
"representatives") furnishes to Xxxxx or its representatives. The term
"Evaluation Material" will also include all analyses, compilations, studies or
other documents prepared by Xxxxx or its representatives containing or based in
whole or in part on any information furnished by the Company or its
representatives (collectively, "Analyses"). The term "Xxxxx" shall include
Xxxxx Corporation Limited as well as such associate or affiliate, as such terms
are defined in Regulation 12(b) of the General Rules and Regulations of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), of Xxxxx.
Xxxxx agrees that the Evaluation Material, except as hereinafter
provided, without the prior written consent of the Company, will not be used by
Xxxxx in any way detrimental to the Company, will be kept confidential by Xxxxx
and its representatives, shall not be disclosed by Xxxxx or its representatives,
in any manner whatsoever, in whole or in part, and shall not be used by Xxxxx or
its representatives other than for the purpose of evaluating the Transaction.
Xxxxx further agrees to transmit the Evaluation Material only to those of its
representatives who need to know such information for the purpose of evaluating
the Transaction and who shall (i) be advised by Xxxxx of this Agreement and (ii)
agree with Xxxxx to be bound by the provisions hereof. Xxxxx shall be
responsible for any breach of this Agreement by its representatives.
Without the prior written consent of the Company, or except upon the
advise of its outside legal counsel that it is legally required to do so, Xxxxx
will not and will direct its
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Xxxxx Corporation Limited - Page Two
representatives who are given access to the Evaluation Material not to, disclose
to any person (other than a person authorized hereunder) the existence of this
letter, or any of the terms, conditions or other facts with respect to the
possible Transaction, including the status thereof. The term "person" as used
in this Agreement shall be broadly interpreted to include without limitation
any corporation, limited liability company, partnership, other entity or any
individual.
In the event that Xxxxx or its representatives are requested or become
legally compelled in any judicial, or administrative proceeding or by any
governmental or regulatory authority (through oral questions, interrogatories,
requests for information or documents, subpoena, civil investigative demand or
similar process) to disclose any of the Evaluation Material or the fact that the
Evaluation Material has been made available to Xxxxx or its representatives,
that discussions or negotiations are taking place or any of the terms,
conditions or other facts with respect to the possible Transaction (the
Evaluation Material together with such other information, the "Confidential
Information"), Xxxxx agrees that it or its representatives, as the case may be,
will provide the Company with prompt written notice thereof so that the Company
may seek a protective order or other appropriate remedy and/or compliance with
the provisions of this Agreement.
Xxxxx further agrees that if, in the absence of a protective order or
the receipt of a waiver hereunder, Xxxxx or any of its representatives is
nonetheless, in the reasonable written opinion of its outside legal counsel
addressed to the Company, compelled to disclose Confidential Information, Xxxxx
or such representative may disclose such information. In such event, or in the
event that the Company waives compliance with the provisions of this Agreement,
Xxxxx agrees that only that portion of the Confidential Information which is
legally required to be furnished shall be furnished and that is will exercise
its best efforts to obtain reliable assurance that confidential treatment will
be accorded to that portion of the Confidential Information which is being
disclosed.
In addition, Xxxxx acknowledges that it is aware (and, if applicable,
that its representatives who are apprised of this matter have been advised)
that the United States securities laws prohibit any person who has material
non-public information about a company, including its subsidiaries, from
purchasing or selling securities of such company.
In consideration of being furnished that Evaluation Material and in
view of the fact that the Evaluation Material consists of confidential and
non-public information, Xxxxx agrees that for a period of thirty-six months from
the date of this Agreement (the "Review Period"), Xxxxx will not in any manner,
nor xxxx Xxxxx assist or encourage others (including by providing financing) to,
directly or indirectly (i) acquire or offer or agree to acquire any securities
or assets of the Company or become a member of any "group" (within the meaning
of Section 13(d) of the Exchange Act) which holds or proposes to acquire
securities of the Company; (ii) commence, propose or announce any tender offer,
merger or other business combination involving the Company or any of its
Subsidiaries, or
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Xxxxx Corporation Limited - Page Three
any recapitalization, restructuring liquidation, dissolution or other
extraordinary transaction with respect to the Company or any of its
subsidiaries; (iii) engage in any "solicitation" of "proxies"(as such terms are
used in the proxy rules promulgated under the Exchange Act) or consents to vote
any voting securities of the Company or seek to advise or influence any person
or entity with respect to the voting of any securities of the Company; (iv) make
any filing under the Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act of 1976 with
respect to the acquisition of voting securities or assets of the Company; (v)
otherwise seek or propose to influence or control the Board of Directors,
management or policies of the Company; (vi) take any action that could
reasonably be expected to force the Company to make a public announcement
regarding any of the types of matters referred to in clauses (i), (ii) or (iii)
above; or (vii) enter into any discussions, negotiations, agreements,
arrangements or understandings with any third party with respect to any of the
foregoing. Xxxxx also agrees during such period not to request the Company or
any of its representatives to amend or waive any provision of this
paragraph (including this sentence). If at any time during such period Xxxxx
is approached by any third party concerning its or their participation in any
of the types of matters referred to in clauses (i), (ii) or (iii) above, Xxxxx
will promptly inform the Company of the nature of such contact and the parties
thereto. Xxxxx hereby acknowledges that neither it nor any of its affiliates or
associates is on the date hereof the beneficial owner shares of capital stock
of the Company.
Xxxxx further agrees that, for a period of thirty-six months from the
date hereof, neither it nor any of its affiliates will solicit to employ any
officer or employee of the Company or any of its subsidiaries, so long as they
are employed by the Company or any of its subsidiaries, without obtaining the
prior written consent of the Company. The term "solicit to employ" does not
include general solicitations of employment not specifically directed towards
employees of the Company and its subsidiaries.
It is expressly understood by the parties hereto that this agreement is
not intended to, and does not, constitute an agreement to consummate a
Transaction or to enter into a definitive Transaction agreement, and neither
the Company nor Xxxxx will have any rights or obligations of any kind
whatsoever with respect to a Transaction by virtue of this agreement or any
other written or oral expression by either party hereto or their respective
representatives unless and until a definitive agreement relating thereto between
the Company and Xxxxx is executed and delivered, other than for the matters
specifically agreed to herein.
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Xxxxx Corporation Limited -- Page Four
Xxxxx further acknowledges that (i) the Company and its representatives
shall be free to negotiate with any other person and enter into a definitive
agreement with regard to a Transaction without prior notice to Xxxxx or any
other person, (ii) the Company reserves the right to reject any and all
proposals made by Xxxxx or any of its representatives with regard to a possible
Transaction and to terminate any discussions or negotiations with Xxxxx at any
time, and (iii) neither the Company nor any of its affiliates or
representatives nor any third party with whom the Company enters into any
agreement for, or completes, a business combination transaction shall have any
liability to you arising out of or relating to such a business combination
transaction (other than any liability arising under a definitive Transaction
agreement with Xxxxx in accordance with the terms thereof).
Xxxxx agrees to keep a record of the Evaluation Material furnished to
it or its representatives and of the location thereof. In the event that the
Transaction is not effected after Xxxxx has been furnished with Evaluation
Material, Xxxxx will promptly upon the request of the Company deliver to the
Company the Evaluation Material and all copies thereof, except for that portion
of the Evaluation Material which consists of Analyses, without retaining any
copy thereof. That portion which consists of Analyses will be held by Xxxxx and
kept confidential and subject to the terms of this Agreement or destroyed at
the request of the Company. Such destruction shall be confirmed in writing to
the Company.
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 Xxxxx or its representatives, (ii) was available to Xxxxx on a
non-confidential basis prior to its disclosure to Xxxxx by the Company or its
representatives or (iii) becomes available to Xxxxx on a non-confidential basis
from a source other than the Company or its representatives, provided, however,
that such source is not bound by a confidentiality agreement with the Company
or its representatives.
Although Xxxxx understands that the Company has endeavored to include
in the Evaluation Material information known to the Company which the Company
believes to be relevant for the purpose of its investigation, Xxxxx further
understands that, except as may otherwise be agreed in writing, the Company
does not make any representation or warranty as to the accuracy or completeness
of the Evaluation Material. Xxxxx agrees that neither the Company nor any of
its representatives shall have any liability to Xxxxx or any of its
representatives resulting from the use of the Evaluation Material by Xxxxx or
its representatives.
Xxxxx understands and agrees that no failure or delay in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or
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Xxxxx Corporation Limited -- Page Five
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any right, power or privilege hereunder.
Xxxxx understands and agrees that money damages would not be a
sufficient remedy for any breach of this Agreement by Xxxxx or its
representatives and that the Company shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for any such breach.
Such remedy shall not be deemed to be the exclusive remedy for any such
breach but shall be in addition to all other remedies available at law or
equity to the Company.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without reference to the conflicts of laws
principles thereof.
If you are in agreement with the foregoing, please sign and return one
copy of this Agreement to the undersigned which will constitute our agreement
with respect to the subject matter hereof. This Agreement may be executed in
several counterparts, all of which together shall constitute one and the same
agreement.
Very truly yours,
PEAK TECHNOLOGIES GROUP, INC.
By: /s/ Xxxxxxxx X.X. Xxxx
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Xxxxxxxx X.X. Xxxx
Chairman & Chief Executive Officer
Confirmed and agreed to as of
the date first above written:
XXXXX CORPORATION LIMITED
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Vice President Corporate Development
and General Counsel
