March 12, 1997
Stant Corporation
000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Bessemer Partners & Co.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Confidentiality Agreement
We hereby confirm to Stant Corporation (the "Company") and Bessemer
Partners & Co. ("Bessemer Partners") that we are exploring the possible
purchase by us (a "Transaction") of all or a significant portion of the stock
of the Company. In connection with our analysis of a possible Transaction, we
have requested certain oral and written information concerning the Company
(collectively, the "Evaluation Material"). In consideration of furnishing the
Evaluation Material, the Company and Bessemer Partners request our agreement to
the following (it being understood that we are also agreeing to cause our
affiliates to comply with the provisions hereof):
1. The Evaluation Material will be used solely for the purpose of
evaluating a possible Transaction and, unless and until we have completed a
Transaction pursuant to definitive agreements ("Sale Agreements") between us
and the Company and between us and Bessemer Capital Partners ("BCP"), such
information will be kept confidential by us and our advisors, except that we
may disclose the Evaluation Material or portions thereof to those of our
directors, officers and employees and representatives of our advisors (the
persons to whom such disclosure is permissible being collectively called
"Representatives") who need to know such information for the purpose of
evaluating our possible Transaction (it being understood that, before
disclosing the Evaluation Material or any portion thereof to such
Representatives, we will inform them of the confidential nature of the
Evaluation Material and obtain their agreement to be bound by this agreement
and not to disclose such information to any other person). We agree to be
responsible for any breach of this agreement by our Representatives. In the
event that we or any of our Representatives become legally compelled (by
deposition,
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interrogatory, request for documents, subpoena, civil investigative demand or
similar process) to disclose any of the Evaluation Material, we shall provide
Bessemer Partners with prompt prior written notice of such requirement so that
Bessemer Partners or the Company may seek a protective order or other
appropriate remedy and/or waive compliance with the terms of this agreement. In
the event that such protective order or other remedy is not obtained, or that
Bessemer Partners or the Company waives compliance with the provisions hereof,
we agree to furnish only that portion of the Evaluation Material which we are
advised by written opinion of counsel is legally required and to exercise best
efforts to obtain assurance that confidential treatment will be accorded such
Evaluation Material.
2. The term "Evaluation Material" does not include any information
that (a) at the time of disclosure or thereafter is generally available to and
known by the public (other than as a result of a disclosure in violation of
this Agreement directly or indirectly by us or our Representatives), (b) was
available to us on a nonconfidential basis from a source other than the Company
or Bessemer Partners, provided that such source is not and was not known to us
to be bound by a confidentiality agreement with Bessemer Partners or the
Company, or (c) has been independently acquired or developed by us without
violating any of our obligations under this agreement.
3. If a Transaction is not consummated by us or if the Company or
Bessemer Partners so requests, we will promptly return to the Company or
Bessemer Partners all copies of the Evaluation Material in our possession or in
the possession of our Representatives, and we will promptly destroy all copies
of any analyses, compilations, studies or other documents prepared by us or for
our use containing or reflecting any Evaluation Material.
4. Subject to Section 1 above and except as may be legally required or
as may be required by applicable stock exchange regulation, (x) without the
prior written consent of the Company, we will not, and will direct our
Representatives not to, disclose to any person (including the Company and its
directors, officers and employees and representatives of the Company's advisors
with the exception of Bessemer Partners), and (y) without our prior written
consent, each of the Company and Bessemer Partners will not, and will direct
their respective directors, officers, employees and representatives of their
advisors not to, disclose to any person, (a) the fact that any investigations,
discussions or negotiations are taking place concerning a possible Transaction,
(b) that we have
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requested or received Evaluation Material, or (c) any of the terms, conditions
or other facts with respect to any possible Transaction, including the status
thereof. In the event any party concludes that such disclosure may be so
required, such party will give the other party as much notice of the proposed
disclosure as is reasonably practicable and an opportunity to comment thereon.
The term "person" as used in this agreement will be interpreted broadly to
include, without limitation, any corporation, company, partnership or
individual.
5. Until the earliest to occur of (a) the execution by us of a
definitive Sale Agreements, (b) an acquisition of the Company by a third party
or (c) two years from the date of this agreement, we agree not to initiate or
maintain contact (except for those contacts made in the ordinary course of
business) with any officer, director or employee or agent of the Company or its
subsidiaries regarding its business, operations, prospects or finances, except
with the express permission of the Company or Bessemer Partners. It is
understood that Bessemer Partners will arrange for appropriate contacts for due
diligence purposes. It is further understood that 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 Bessemer
Partners.
6. We understand and acknowledge that neither the Company nor Bessemer
Partners is making any representation or warranty, express or implied, as to
the accuracy or completeness of the Evaluation Material, and none of the
Company, Bessemer Partners, or any of their respective officers, directors,
employees, stockholders, owners, affiliates or agents, will have any liability
to us or any other person resulting from our use of the Evaluation Material.
Only those representations and warranties that are made to us in definitive
Sale Agreements when, as, and if they are executed, and subject to such
limitations and restrictions as may be specified in such Sale Agreements, will
have any legal effect.
7. We agree that until the earliest to occur of (x) the execution by
us of definitive Sale Agreements or (y) the expiration of one year from the
date of this agreement, we shall not (a) except with the express permission of
the Company or Bessemer Partners in any manner acquire, agree to acquire or
make any proposal to acquire, directly or indirectly, any securities or
property of the Company or any of its subsidiaries, (b) except at the
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specific written request or written permission of the Company, as the case may
be, propose to enter into, directly or indirectly, any merger or business
combination involving the Company or any of its subsidiaries or to purchase,
directly or indirectly, a material portion of the assets of the Company or any
of its subsidiaries, (c) make, or in any way participate, directly or
indirectly, in any "solicitation" of "proxies" (as such terms are used in the
proxy rules of the Securities and Exchange Commission) to vote, or seek to
advise or influence any person with respect to the voting or, any voting
securities of the Company or any of its subsidiaries, (d) form, join or in any
way participate in a "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934) with respect to any voting securities of the
Company or any of its subsidiaries, (e) otherwise act, alone or in concert with
others, to seek to control or influence the management, Board of Directors or
policies of the Company, (f) disclose any intention, plan or arrangement
inconsistent with the foregoing or (g) advise, assist or encourage any other
persons in connection with any of the foregoing. We also agree during such
period not to request the Company or Bessemer Partners, directly or indirectly,
to amend or waive any provision of this paragraph (including this sentence).
We, the Company and Bessemer Partners agrees during such period not to take any
action which might require any of the parties to make a public announcement
regarding the possibility of a business combination or merger.
8. We also understand and agree that no contract or agreement
providing for a Transaction shall be deemed to exist between us and the Company
and/or any of its stockholders unless and until definitive Sale Agreements have
been executed and delivered, and we hereby waive, in advance, any claims
(including, without limitation, claims for breach of contract) in connection
with any possible Transaction unless and until we shall have entered into a
definitive Sale Agreements. We also agree that unless and until definitive Sale
Agreements between the Company, BCP and us with respect to the acquisition of
the Company have been executed and delivered, neither the Company nor any of
its stockholders has any legal obligation of any kind whatsoever with respect
to any such transaction by virtue of this agreement of any other written or
oral expression with respect to such transaction except, in the case of this
agreement, for the matters specifically agreed to herein. For purposes of this
paragraph, the term "definitive Sale Agreements" does not include an executed
letter of intent or any other preliminary written agreement, nor does it
include any written or oral acceptance of any offer or bid on our part.
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9. We agree that, in the event of any breach of the provisions of this
agreement, each of the Company and Bessemer Partners shall be entitled to
equitable relief, including in the form of injunctions and orders for specific
performance, in addition to all other remedies available to the Company or
Bessemer Partners at law or in equity. We also hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the courts
of the State of New York and of the United States of America located in the
City of New York for any actions, suits or proceedings arising out of or
relating to this agreement and the transactions contemplated hereby (and we
agree not to commence any action, suit or proceeding relating thereto except in
such courts), and further agree that service of any process, summons, notice or
document by U.S. registered mail to your address set forth above shall be
effective service of process for any action, suit or proceeding brought against
us in any such court. We hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this agreement or the transactions contemplated hereby in the courts of the
State of New York or the United States of America located in the City of New
York, and hereby further irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
This agreement is for the benefit of the parties hereto and will be
governed by and construed in accordance
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with the laws of the State of New York. Our obligations under this agreement
will expire two years from the date of this agreement.
Very truly yours,
XXXXXXX CORPORATION,
by /s/ Xxxxxxxx Xxxxx
-------------------------------
Title: Director
Corporate Development
Accepted and agreed as of
the date written above:
STANT CORPORATION,
by /s/ Xxxx X. Xxxxx
----------------------------
Title: Chairman
BESSEMER PARTNERS & CO.,
by LA HOYA CORPORATION,
----------------------------
its managing general
partner,
by /s/ Xxxx X. Xxxxx
----------------------------
Title: President
