EXHIBIT 10.1
DTM CORPORATION
0000 Xxxxxxx Xxxxxx
Xxxxxxxx 0
Xxxxxx, Xxxxx 00000-0000
April 24, 1998
Proactive Finance Group, LLC
000 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Confidentiality Agreement
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Ladies and Gentlemen:
In connection with the possible transaction (the "Proposed
Transaction") between DTM Corporation ("DTM") and Proactive Finance Group, LLC
("Proactive"), and in order to allow Proactive to evaluate the Proposed
Transaction, DTM has and will deliver to Proactive, upon the execution and
delivery of this letter agreement by Proactive, certain information about DTM's
properties, employees, finances, businesses and operations. All information (i)
about DTM or (ii) about a third party (which information was provided to DTM
subject to a confidentiality agreement with such third party, and provided that
Proactive was notified of the existence of such third party confidentiality
agreement) furnished by DTM or its Representatives (as defined below) to
Proactive or its Representatives, whether furnished before or after the date
hereof in connection with the Proposed Transaction, and regardless of the manner
in which it is furnished, is referred to in this letter agreement as
"Proprietary Information." Proprietary Information shall not include, however,
information which (i) is or becomes generally available to the public other than
as a result of a disclosure by Proactive or its Representatives in violation of
this letter agreement; (ii) was available to Proactive on a nonconfidential
basis prior to its disclosure by DTM or its Representatives; (iii) becomes
available to Proactive on a nonconfidential basis from a person other than DTM
or its Representatives who is not otherwise bound by a confidentiality agreement
with DTM or any of its Representatives, or is otherwise not known to Proactive
to be under an obligation to DTM or any of its Representatives not to transmit
the information to Proactive; or (iv) was independently developed by Proactive
without reference to or use of the Proprietary Information. For purposes of
this letter agreement, (i) "Representative" shall mean, as to any person, its
directors, officers, employees, agents and advisors (including, without
limitation, financial advisors, attorneys and accountants) and debt and equity
financing sources and their advisors and Representatives; and (ii) "person"
shall be broadly interpreted to include, without limitation, any corporation,
company, partnership, other
Confidentiality Agreement
April 24, 1998
Page 2
entity or individual. Notwithstanding anything to the contrary herein, DTM
agrees that, with its prior written consent not to be unreasonably withheld,
Proactive may provide summary information regarding the proposed transaction to
potential debt and equity financing sources. To the extent such summary
information includes Proprietary Information, Proactive will submit such
information to DTM for consent purposes as described in the prior sentence.
Subject to the immediately succeeding paragraph, unless otherwise
agreed to in writing by DTM, Proactive (i) except as required by law, shall keep
all Proprietary Information confidential, shall not disclose or reveal any
Proprietary Information to any person other than its Representatives who are
actively and directly participating in its evaluation of the Proposed
Transaction or who otherwise need to know the Proprietary Information for the
purpose of evaluating the Proposed Transaction and shall cause those persons to
observe the terms of this letter agreement; (ii) shall not use Proprietary
Information for any purpose other than in connection with its evaluation of the
Proposed Transaction or the consummation of the Proposed Transaction in a manner
that DTM has approved; and (iii) except as required by law, shall not disclose
to any person (other than those of its Representatives who are actively and
directly participating in its evaluation of the Proposed Transaction or who
otherwise need to know for the purpose of evaluating the Proposed Transaction
and, in the case of its Representatives, whom it will cause to adopt the
substance of terms of this letter agreement in writing for the express benefit
of DTM) any information about the Proposed Transaction, or the terms or
conditions or any other facts relating thereto, including, without limitation,
the fact that discussions are taking place with respect thereto or the status
thereof, or the fact that Proprietary Information has been made available to
Proactive or its Representatives. Proactive shall be responsible for any breach
of the terms of this letter agreement by it and secondarily responsible for any
breach of the terms of this letter agreement by its Representatives.
In the event that Proactive or any of its Representatives are
requested pursuant to, or required by, applicable law or regulation (including,
without limitation, any rule, regulation or policy statement of any national
securities exchange, market or automated quotation system on which any of
Proactive's securities are listed or quoted) or by legal process to disclose any
Proprietary Information or any other information concerning DTM or the Proposed
Transaction, Proactive shall provide DTM with prompt notice of such request or
requirement in order to enable DTM, at its cost, (i) to seek an appropriate
protective order or other remedy, (ii) to consult with Proactive with respect to
Proactive's taking steps to resist or narrow the scope of such request or legal
process, or (iii) to waive compliance, in whole or in part, with the terms of
this letter agreement. In the event that such protective order or other remedy
is not obtained, or DTM waives compliance, in whole or in part, with the terms
of this letter agreement, Proactive or its Representative shall use good faith
efforts to disclose only that portion of the Proprietary Information which is
legally required to be disclosed and to ensure
Confidentiality Agreement
April 24, 1998
Page 3
that all Proprietary Information that is so disclosed will be accorded
confidential treatment to the fullest extent available. In the event that
Proactive or its Representatives, as the case may be, shall have complied with
the provisions of this paragraph, such disclosure may be made by Proactive or
its Representatives, as applicable, without any liability hereunder.
For a period (the "Restricted Period") commencing with the date of
this letter agreement and ending on the earlier of (i) the second anniversary of
the date of this letter agreement and (ii) the occurrence of a "Significant
Event" (as defined below), neither Proactive nor any of its Representatives
shall, without the prior written consent of DTM's Board of Directors or any
committee thereof delegated the responsibility for such matters:
(a) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities or
direct or indirect rights to acquire any voting securities of DTM
or any subsidiary of DTM, or of any successor to or person in
control of DTM, or any assets of DTM or any subsidiary or
division of DTM or of any such successor or controlling person
(excluding in any event DTM voting securities indirectly held
through mutual funds and other such passive investment vehicles
over which neither Proactive nor any of its affiliates or
Representatives retain any investment discretion);
(b) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are used in
the rules of the Securities and Exchange Commission (the "SEC")),
or seek to advise or influence any person or entity with respect
to the voting of any voting securities of DTM;
(c) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any
extraordinary transaction involving DTM or any of its securities
or assets;
(d) form, join or in any way participate in a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), in connection with any of the
foregoing;
(e) otherwise act or seek to control or influence the management,
Confidentiality Agreement
April 24, 1998
Page 4
Board of Directors or policies of DTM;
(f) take any action that could reasonably be expected to require DTM
to make a public announcement regarding the possibility of any of
the events described in clauses (a) through (e) above; or
(g) request DTM or any of its Representatives, directly or
indirectly, to amend or waive any provision of this paragraph.
During the Restricted Period, Proactive shall promptly advise DTM of any inquiry
or proposal made to it with respect to any of the foregoing. For purposes of
this letter agreement, (i) "Significant Event" shall mean, with respect to DTM,
any of (A) the acquisition by any person or "13D Group" (as defined below) of
beneficial ownership of "Voting Securities" (as defined below) of DTM
representing 15% or more of the then outstanding Voting Securities of DTM; (B)
the announcement or commencement by any person or 13D Group of a tender or
exchange offer to acquire Voting Securities of DTM which, if successful, would
result in such person or 13D Group owning, when combined with any other Voting
Securities of DTM owned by such person or 13D Group, 15% or more of the then
outstanding Voting Securities of DTM; or (C) the entry into by DTM, or
determination by DTM to seek to enter into, any merger, sale or other business
combination transaction pursuant to which the outstanding shares of common stock
of DTM would be converted into cash or securities of another person or 13D Group
or 50% or more of the then outstanding shares of common stock of DTM would be
owned by persons other than the then current holders of shares of common stock
of DTM, or which would result in all or a substantial portion of DTM's assets
being sold to any person or 13D Group; (ii) "Voting Securities" shall mean, with
respect to DTM, at any time shares of any class of capital stock of DTM which
are then entitled to vote generally in the election of directors; provided, that
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for purposes of this definition any securities which at such time are
convertible or exchangeable into or exercisable for shares of common stock of
DTM shall be deemed to have been so converted, exchanged or exercised; and (iii)
"13D Group" shall mean, with respect to the Voting Securities of DTM, any group
of persons formed for the purpose of acquiring, holding, voting or disposing of
such Voting Securities which would required under Section 13(d) of the Exchange
Act and the rules and regulations thereunder to file a statement on Schedule 13D
with the SEC as a "person" within the meaning of Section 13(d)(3) of the
Exchange Act if such group beneficially owned Voting Securities representing
more than 5% of the total combined voting power of all such Voting Securities
then outstanding.
Proactive agrees that neither it nor its Representatives will at any
time from the date of this letter agreement until the two year anniversary of
the date of this letter agreement, directly or indirectly, solicit for
employment any employee of DTM who serves in an executive
Confidentiality Agreement
April 24, 1998
Page 5
capacity or who is identified by such party as a result of its evaluation or
otherwise in connection with the Proposed Transaction.
To the extent that any Proprietary Information may include material
subject to the attorney-client privilege, work product doctrine or any other
applicable privilege concerning pending or threatened legal proceedings or
governmental investigations, the parties understand and agree that they have a
commonality of interest with respect to such matters and it is their desire,
intention and mutual understanding that the sharing of such material is not
intended to, and shall not, waive or diminish in any way the confidentiality of
such material or its continued protection under the attorney-client privilege,
work product doctrine or other applicable privilege. All Proprietary
Information provided by a party that is entitled to protection under the
attorney-client privilege, work product doctrine or other applicable privilege
shall remain entitled to such protection under these privileges to the fullest
extent available under applicable law. Nothing in this letter agreement
obligates any party to reveal material subject to the attorney-client privilege,
work product doctrine or any other applicable privilege.
If either party hereto shall determine that it does not wish to
proceed with the Proposed Transaction, such party shall promptly advise the
other party of that decision. In that case, or in the event that DTM, in its
sole discretion, so requests or the Proposed Transaction is not consummated by
Proactive, Proactive shall, upon DTM's written request, promptly deliver to DTM
all Proprietary Information, and, at Proactive's election, return or destroy
(provided that any such destruction shall be certified by a duly authorized
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Representative of Proactive) all copies, reproductions, summaries, analyses or
extracts thereof, including any electronic or computer file copies, or based
thereon in Proactive's possession or in the possession of any Representative of
Proactive.
Subject to the terms and conditions of a definitive agreement
regarding the Proposed Transaction and without prejudice thereto, Proactive
acknowledges that neither DTM nor its Representatives nor any of the officers,
directors, employees, agents or controlling persons of such Representatives
makes any express or implied representation or warranty as to the completeness
of the Proprietary Information. Proactive shall not be entitled to rely on the
completeness of any Proprietary Information, but shall be entitled to rely
solely on such representations and warranties regarding the completeness of the
Proprietary Information as may be made to it in any definitive agreement
relating to the Proposed Transaction, subject to the terms and conditions of
such agreement.
Until a definitive agreement regarding the Proposed Transaction has
been executed by the parties hereto, neither party hereto shall be under any
legal obligation or have any liability to the other party of any nature
whatsoever with respect to the Proposed Transaction by
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April 24, 1998
Page 6
virtue of this letter agreement or otherwise (other than with respect to the
confidentiality and other matters set forth herein). DTM and its
Representatives (i) may conduct the process that may or may not result in the
Proposed Transaction in such manner as DTM, in its sole discretion, may
determine (including, without limitation, negotiating and entering into a
definitive agreement with any third party without notice to Proactive) and (ii)
reserves the right to change (in its sole discretion, at any time and without
notice to Proactive) the procedures relating to the consideration of the
Proposed Transaction (including, without limitation, terminating all further
discussions with Proactive and requesting that Proactive return or destroy the
Proprietary Information as described above).
Without prejudice to the rights and remedies otherwise available to
DTM, DTM shall be entitled to equitable relief by way of injunction or otherwise
if Proactive or any of its Representatives breach or threaten to breach any of
the provisions of this letter agreement. In the event of litigation relating to
this letter agreement, if a court of competent jurisdiction determines in a
final order from which there is no appeal that this letter agreement has been
breached by Proactive or by its Representatives, the breaching party will
reimburse DTM for its costs and expenses (including, without limitation,
reasonable legal fees and expenses) incurred in connection with the enforcement
of this letter agreement and such litigation.
It is further understood and agreed that no failure or delay by DTM 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.
This letter agreement shall be governed by and construed in accordance
with the laws of the State of Texas, without giving effect to its principles or
rules regarding conflicts of laws, other than such principles directing
application of Texas law. Each party hereby consents to the institution and
resolution of any action or proceeding of any kind or nature with respect to or
arising out of this agreement brought by any party hereto in the federal or
state courts located within the State of Texas.
This letter agreement contains the entire agreement between the
parties hereto concerning confidentiality of the Proprietary Information, and no
modification of this letter agreement or waiver of the terms and conditions
hereof shall be binding upon either party hereto, unless approved in writing by
each such party.
Confidentiality Agreement
April 24, 1998
Page 7
Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
DTM CORPORATION
By: /s/ XXXX X. XXXXXXXXX, III
_________________________________________
Xxxx X. Xxxxxxxxx, III
President and Chief Executive Officer
ACCEPTED AND AGREED as of
the date hereof:
PROACTIVE FINANCE GROUP, LLC
By: /s/ XXXXXXX XXXXXXXXX
_____________________________________
Name: Xxxxxxx Xxxxxxxxx
Title: President
