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CONFIDENTIALITY AGREEMENT
February 12, 0000
Xxxxxxxx Xxxx Machinery Limited
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Dear Sirs:
Volvo Construction Equipment NV (the "Purchaser") has requested information
relating to Champion Road Machinery Limited (the "Corporation") in connection
with its possible interest in a purchase of securities of the Corporation or any
other business combination with the Corporation (each, a "Transaction"). All
information furnished to the Purchaser or any affiliate of the Purchaser or
their respective agents (including officers and directors of the Purchaser and
of affiliates of the Purchaser), representatives (including lawyers,
accountants and financial advisors) or employees (collectively,
"Representatives") which contains or reflects information which is either
non-public, confidential or proprietary in nature is hereinafter referred to as
the "Information". In consideration of the mutual covenants contained herein
(and other good and valuable consideration the receipt and adequacy of which are
hereby expressly acknowledged), the Corporation and the Purchaser agree as
follows:
PURCHASER COVENANTS
CONFIDENTIALITY - The Information will be kept confidential and shall
not, without the Corporation's prior written consent, be disclosed by
the Purchaser or by its Representatives in any manner whatsoever, in
whole or in part, and shall not be used by the Purchaser or its
Representatives other than in connection with the Purchaser's
evaluation of a possible Transaction. Moreover, the Purchaser agrees
to reveal the Information only to those of the Purchaser's
Representatives who need to know the Information for purposes of
evaluating a possible Transaction, who are informed by the Purchaser
of the confidential nature of the Information and who agree with the
Purchaser to act in accordance with the terms and conditions of this
Agreement. The Purchaser shall be responsible for any breach of this
Agreement by a Representative.
NON-DISCLOSURE - Without the prior written consent of the Corporation,
except as required by law or as is necessary for purposes of the
Purchaser formally initiating and completing a Transaction in
accordance with applicable law or making
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regulatory filings or submissions in preparation therefor, the
Purchaser and its Representatives will not make any public disclosure
of, or any announcement or statement with respect to, a potential
Transaction or this Agreement, including without limitation, that
discussions or negotiations are taking place or have taken place
concerning a possible Transaction involving the Purchaser and the
Corporation or its affiliates or shareholders or any of the terms,
conditions or other facts with respect to any such possible
Transaction, including the status thereof, nor disclose to any person
the fact that the Information has been made available, and, in
particular, the Purchaser shall not communicate in any manner with any
creditor of, supplier to or customer of, the Corporation or any of its
affiliates or any agents or representatives of any of the foregoing in
relation to any of the Information or any such potential Transaction.
INFORMATION - All copies of the Information, including that portion of
the Information which consists of analyses, compilations, forecasts,
studies or other documents prepared by the Purchaser or its
Representatives, will be destroyed upon the Corporation's request (and
we shall so certify).
EXCEPTION - The term Information shall not include such portions of
the Information which (i) are or become generally available to the
public other than as a result of non-authorized disclosure by the
Purchaser or its Representatives, (ii) are received from an
independent third party who, in the reasonable judgment of the
Purchaser, had obtained the information lawfully and was under no
obligation of confidentiality, (iii) were in the Purchaser's
possession before it received such Information from the Corporation,
or (iv) were independently developed by the Purchaser or on its behalf
by personnel having no access to the Information at the time of
independent development.
NO WARRANTY - The Purchaser acknowledges that none of the Corporation
or its affiliates, agents or advisors makes any express or implied
representation or warranty as to the accuracy or completeness of the
Information, and each of such parties expressly disclaims any and all
liability that may be based on the Information, errors therein or
omissions therefrom. The Purchaser agrees that it is not entitled to
rely on accuracy or completeness of the Information and that it shall
be entitled to rely solely on the representations and warranties made
to it in any final agreement regarding a Transaction.
REQUIRED DISCLOSURE - In the event that the Purchaser or anyone to
whom the Purchaser transmits the Information pursuant to this
Agreement become legally compelled to disclose any of the Information,
the Purchaser will provide the Corporation with prompt notice so that
the Corporation may seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this Agreement.
In the event that such protective order or other remedy is not
obtained, or that the Corporation waives compliance with the provisions
of this
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Agreement, the Purchaser will furnish only that portion of the
Information which it is advised by counsel is legally required and
shall seek assurances that such Information so disclosed shall be
accorded confidential treatment.
NON-SOLICITATION OF EMPLOYEES - The Purchaser agrees that, without the
Corporation's prior written consent, it will not for a period of two
years from the date hereof directly or indirectly solicit for
employment or employ any of the persons listed on Schedule "A" hereto
who is employed by the Corporation or one of its subsidiaries at the
time of such solicitation.
STANDSTILL/NO ACQUISITION OF INTERESTS - The Purchaser and its
associates and affiliates do not own (beneficially or otherwise) any
securities of the Corporation at the date hereof. The Purchaser
agrees that neither the Purchaser nor any of its associates or
affiliates will directly, indirectly or jointly or in concert with any
other person purchase, offer or agree to purchase or enter into any
option to purchase any shares or assets of the Corporation or of any
of the Corporation's affiliates or enter, offer or agree to enter into
any acquisition or other business combination transaction relating to
the Corporation or any of its affiliates, or propose any of the
foregoing, unless such purchase, transaction, offer, agreement or
proposal (i) shall have been previously approved by the Board of
Directors of the Corporation, (ii) constitutes an offer to all holders
of outstanding common shares of the Corporation to acquire all or any
of the outstanding common shares from holders who accept such offer on
a pro rata basis or acquisitions pursuant thereto, (iii) is in
response to an offer by a party unrelated to the Purchaser to acquire
in excess of 50% of the outstanding common shares of the Corporation
by formal take-over bid or tender offer, or by merger, statutory
arrangement, amalgamation or otherwise or to enter into any other
business combination transaction involving the Corporation, or
(iv) constitutes an offer, proposal or agreement with a shareholder or
shareholders of the Corporation to acquire shares of the Corporation
pursuant to the offer contemplated by clause (ii) hereof or in
response to any offer by a party unrelated to the Purchaser
contemplated by clause (iii) hereof.
CORPORATION NON-DISCLOSURE - Except as required by any competent
governmental or judicial authority or, on the advice of counsel, as
required to comply with the rules of any applicable stock exchange, the
Corporation shall not make any public disclosure of or disclosure to any
person of, or any announcement or statement with respect to, a potential
Transaction or this Agreement, including without limitation, that
discussions or negotiations are taking place or have taken place concerning
a possible Transaction involving the Purchaser and the Corporation or its
affiliates or shareholders or any of the terms, conditions or other facts
with respect to any such possible Transaction, including the status
thereof, without the prior written approval of the Purchaser. The
Corporation will make every effort to assure confidential treatment of the
identity of the Purchaser
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and, in the event that the Corporation becomes legally compelled to, or any
applicable stock exchange requires or requests the Corporation to, identify
the Purchaser in the context of a potential Transaction or discussions or
negotiations related thereto, the Corporation shall not do so before first
making every effort to provide the Purchaser with the opportunity to
negotiate or seek a legal remedy so as to keep confidential the identity of
the Purchaser.
SEVERABILITY - Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction only, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
GOVERNING LAW - This Agreement shall be governed and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
REMEDIES - The parties acknowledge that disclosure of the Information may
cause significant damage and harm to the Corporation and its affiliates and
subsidiaries and that disclosure in contravention of subsection 1(b) or
section 2 hereof may cause significant damage and harm to the Corporation
or the Purchaser, respectively, and that remedies at law may be inadequate
to protect against breach of this Agreement, and each party hereby in
advance agrees to the granting of injunctive relief in favour of the other
party without proof of actual damages, in addition to any other remedy to
which the other party may be entitled.
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SURVIVAL - The confidentiality and non-use obligations described in this
Agreement shall terminate 18 months from the date of this Agreement.
WAIVER - It is further understood and agreed that no failure or delay by
either party 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 right, power or privilege hereunder.
NON-ASSIGNMENT - Any assignment of this Agreement by either party without
the prior written consent of the other party shall be void.
ENTIRE AGREEMENT - This Agreement contains the entire agreement between the
parties concerning confidentiality of the Information, and no modification
of this Agreement or waiver of the terms and conditions hereof shall be
binding upon either party, unless approved in writing by each of the
parties.
COUNTERPARTS - This Agreement may be executed and delivered in
counterparts, each of which when executed and delivered shall be deemed to
be an original and both of which together shall be deemed to constitute one
and the same instrument.
If the terms and conditions of this letter are acceptable to the Corporation
please so indicate by executing and returning the enclosed copy hereof to the
undersigned prior to February 13, 1997.
Yours truly,
VOLVO CONSTRUCTION EQUIPMENT NV
By:
Xxxxxxx X. Xxxxxx
Senior Vice-President
Finance and Administration
Agreed and accepted this 12 day of February, 1997.
CHAMPION ROAD MACHINERY LIMITED
By:
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SCHEDULE "A"
OFFICERS
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Art Church
Xxxxx Xxxx
Xxxxxx Vollmershausen
Xxxx Million
Xxxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxx Xxxx
OTHER
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Xxxxxx Xxxxxxxx
Xxxx XxxXxxxxx
Xxxxx Xxxxxxx
Xx Xxxxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxx
Xxxx Xxxxxxxxx
Xxxxx Xxxxxxxxxxxx
Xxxx Xxxxxxxx
