Exhibit 99(c)(9)
August 27, 1998
Xxxxxx Xxxxxxxx
Securitas AB
Box 12307
X-000 00
Xxxxxxxxx, Xxxxxx
Re: Mutual Confidentiality Agreement
Dear Xxxxxx:
This is to set forth our agreement concerning the exchange by Securitas AB
("Securitas") and Pinkerton's, Inc. ("Pinkerton") of certain information about
our respective corporations which is either confidential or otherwise not
generally available to the public in connection with the evaluation (the
"Evaluation") of a potential transaction between them. The information so
furnished by or on behalf of Securitas or Pinkerton after the date of this
agreement, and regardless of the manner in which it is furnished, orally or
otherwise, together with analyses, compilations, studies or other documents or
records prepared by our respective Representatives, to the extent that such
analyses, compilations, studies or other documents or records contain or
otherwise reflect or are generated from such information is referred to herein
as the "Information." As used herein, the term "Representatives" refers to the
directors, officers, employees, agents, accountants, attorneys, consultants and
financial advisors of either Securitas or Pinkerton or any of their affiliates
or associates. The person furnishing such Information is referred to herein as
the "Provider" and the person receiving any Information is referred to herein as
the "Recipient". As used herein, (i) the terms "affiliates" and "associates"
will have the meanings given to such terms under Rule 405, as presently in
effect, under the Securities Act of 1933.
The term "Information" does not include information which (i) was or becomes
generally available to the public other than as a result of a disclosure by our
respective Representatives; (ii) was or becomes available to the Recipient on a
non-confidential basis from a source other than the Provider or its
Representatives, providing that such source is not known by the Recipient to be
bound by a confidentiality agreement with the Provider or otherwise prohibited
from transmitting the Information by a contractual, legal or fiduciary
obligation; or (iii) is or was independently developed by the Recipient without
reference to or reliance on the Information or was within the Recipient's
possession prior to the Information being furnished by or on behalf of the
Provider, provided that the source of such Information was not known by the
Recipient to be bound by a confidentiality agreement with the Provider or
otherwise prohibited from transmitting the Information by a contractual, legal
or fiduciary obligation.
As a condition to, and in consideration of, the furnishing by Securitas and
Pinkerton of Information to the other, each of Securitas and Pinkerton agrees as
follows:
1. Nondisclosure of Information. All Information received by Securitas or
----------------------------
Pinkerton from the other will be kept confidential, will not be used by the
Recipient in any way detrimental to the Provider and will not be used other
than in connection with the Evaluation. Each Recipient will safeguard the
Information received by it from unauthorized disclosure. Either Recipient
may disclose the Information to its Representatives, but only if such
Representatives reasonably need to know the Information in connection with
the Evaluation. Each Recipient will (i) inform its Representatives of the
confidential nature of the Information and of this agreement; (ii) cause
such Representatives to treat the Information confidentially and not to use
it other than in connection with the Evaluation; and (iii) be responsible
for any improper use of the Information by it or any of its Representatives.
Each of Securitas and Pinkerton agrees that it will not, and will cause its
affiliates, associates and Representatives not to, disclose to any person
(a) that the Information has been made available to it; (b) that
investigations, discussions or negotiations are taking or have taken place;
(c) any of the terms, conditions or other facts with respect to any such
possible transaction, including the status thereof; or (d) any other facts
with respect to the discussions between Securitas and Pinkerton. The
information covered by the immediately preceding sentence shall be
considered to be "Information" for purposes of this agreement.
2. Notice Preceding Compelled Disclosure. If either Securitas or Pinkerton, or
-------------------------------------
any of their Representatives, are requested or required by applicable law to
disclose any Information, it will promptly notify the Provider to permit the
Provider to seek a protective order or to take other appropriate action.
Each Recipient will also cooperate in the Provider's efforts to obtain a
protective order or other reasonable assurance that confidential treatment
will be accorded the Information. If, in the absence of a protective order,
either Recipient or any of its Representatives are compelled as a matter of
law to disclose the Information, such Recipient may disclose, but only to
the extent required by applicable law, only the part of the Information as
is required by law to be disclosed; provided that such Recipient shall
notify the Provider in advance of the disclosure and shall exercise
reasonable efforts to obtain an order or reasonable assurance that
confidential treatment shall be accorded such Information.
3. Return or Destruction of Documents. Each Recipient will keep a record in
----------------------------------
reasonable detail of the Information furnished to it and of the location of
the Information. As soon as possible upon the Provider's written request or
upon the termination of the Evaluation, each Recipient will return to the
Provider all written Information which has been provided to it and will
destroy all written documentation prepared by the Recipient or its
Representatives based in whole or in part on any Information; provided,
however, that each Recipient shall be entitled to retain such Information
which has become part of the permanent records of its Board of Directors.
Such destruction or return, as the case may be, will be confirmed in writing
to the Provider. Notwithstanding the return or destruction of any
Information, or documents or material containing or reflecting any
Information, each Recipient will continue to be bound by its obligations of
confidentiality and other obligations hereunder.
4. No Warranty or Accuracy. Each of Securitas and Pinkerton acknowledges that
-----------------------
neither Provider nor its Representatives is making any representation or
warranty as to the accuracy or completeness of any Information. Each
Recipient agrees that neither Provider, nor any
2
Representative of the Provider will have any liability to the Recipient or
its Representatives resulting from the use of the Information by the
Recipient or its Representatives, except to the extent provided in any
definitive agreement between Securitas and Pinkerton.
5. No Purchase of Securities; Other Actions. Each of Securitas and Pinkerton
----------------------------------------
agrees that for a period of two years from the date of this agreement,
neither it nor any of its affiliates or associates will, in any manner,
alone or in concert with others (whether or not pursuant to any legally
binding agreement or commitment), without the prior written approval of the
Board of Directors of the other (i) acquire, or offer to acquire, directly
or indirectly, record or beneficial ownership of any equity securities of
the other or of any subsidiary of the other; (ii) acquire or offer to
acquire, directly or indirectly, any options or other rights to acquire any
equity securities of the other or of any subsidiary of the other (whether or
not exercisable only after the passage of time or the occurrence of any
event); (iii) acquire or offer to acquire, directly or indirectly, any
assets of the other; (iv) offer to enter into any acquisition or other
business combination transaction relating to the other or to any subsidiary
of the other; (v) make, or in any way participate, directly or indirectly,
in any "solicitation" of "proxies" or "written authorization or consent" (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 of any voting securities of the other; (vi) otherwise act,
alone or in concert with others, to seek to control or influence the
management of the Board of Directors or the policies of the other; (vii)
directly or indirectly participate in or encourage the formation of any
"group" (within the meaning of Section 13(d)(3) of the Securities Exchange
Act of 1934) which owns or seeks or offers to acquire record or beneficial
ownership of equity securities of the other (including right to acquire such
securities) or which seeks or offers to affect control of the other or
otherwise seeks or proposes to do any of the acts specified in (i) through
(vi) above; (viii) propose, or publicly announce or otherwise disclose any
request for permission or consent in respect of, any of the foregoing; or
(ix) advise, assist or encourage any other persons in connection with any of
the foregoing. Securitas and Pinkerton also agree during such period not to
(a) request the other (or its directors, officers, employees or agents),
directly or indirectly, to amend or waive any provision of this paragraph
(including this sentence) or (b) take any action which might require the
other to make a public announcement regarding the possibility of a business
combination or merger without the prior written approval of the Board of
Directors of the other as provided above.
Each of Securitas and Pinkerton hereby acknowledges that it is aware, and
that it will advise its Representatives who are informed as to the matters
which are the subject of this agreement, that the United States securities
laws prohibit any person who has received from an issuer material, non-
public information concerning the matters which are the subject of this
agreement from purchasing or selling securities of such issuer or from
communicating such information to any other person under circumstances in
which it is reasonably foreseeable that such person is likely to purchase or
sell such securities.
6. No Solicitations. Except as otherwise provided herein, each of Securitas
----------------
and Pinkerton agrees that without prior approval of the other, neither it
nor any of its Representatives will approach the employees, customers,
suppliers or competitors of the other to discuss any
3
potential transaction involving the other. Each of Securitas and Pinkerton
also agrees that without the prior approval of the other, neither it nor any
of its Representatives will approach the employees of the other to discuss
any information with respect to the other or its business and neither it nor
its Representatives will receive or try to obtain information from any
employee of the other. Each of Securitas and Pinkerton hereby also agrees
that, for a period of two years from the date hereto, neither it nor any of
its associates or affiliates, directly or indirectly, will solicit to employ
any person who at the time is employed by the other and is an officer, a key
employee who is designated as such in a written communication to the
Recipient or an employee whose name is disclosed in the Information, without
obtaining the prior written consent of the other; provided that nothing
herein shall prohibit Securitas or Pinkerton or their associates or
affiliates from publishing advertisements for employment in any newspaper or
periodical of general circulation or from employing such person who is
solicited in the ordinary course of employment or recruiting efforts so long
as no Information is used in connection therewith.
7. No Obligation with Respect to Transaction. Each of Securitas and Pinkerton
-----------------------------------------
understands and agrees that no contract or agreement providing for a
transaction between them shall be deemed to exist unless and until a
definitive transaction agreement (a "Transaction Agreement") has been
executed and delivered. Each of Securitas and Pinkerton also agrees that
unless and until a Transaction Agreement between them has been executed and
delivered, neither Securitas nor Pinkerton has any legal obligation of any
kind whatsoever with respect to any such transaction by virtue of this
agreement or any other written or oral expression with respect to such
transaction except, in the case of this agreement or any other written
agreement, for the matters specifically agreed to herein or therein.
8. Miscellaneous. No failure or delay in exercising any right, power or
-------------
privilege hereunder will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise thereof or
the exercise of any right, power or privilege hereunder. This agreement will
be binding on and inure to the benefit of the parties hereto and their
respective successors and assigns. Money damages would not be a sufficient
remedy for any violation of the terms of this agreement and, accordingly,
Securitas and Pinkerton will be entitled to specific performance and
injunctive relief as remedies for any violation by the other. These remedies
will not be exclusive remedies but will be in addition to all other remedies
available to the non-breaching party at law or equity.
9. Law to Govern. This agreement is made pursuant to and to be construed under
-------------
and conclusively deemed for all purposes to be governed by the laws of the
State of California. Any judicial proceeding arising out of this agreement
or any matter related thereto shall be brought in the courts of the State of
California or in the United States District Court governing the City of Los
Angeles. By execution and delivery of this agreement, each party accepts the
jurisdiction of such courts as noted above, and agrees to be bound by any
judgment rendered therein in connection with this agreement. The prevailing
party of any litigation arising out of this agreement shall be entitled to
receive from the losing party all costs and expenses, including the
reasonable counsel fees incurred by the prevailing party.
4
The obligations of Securitas and Pinkerton under this agreement will expire
three (3) years from the date of this agreement.
If the terms hereof are acceptable, please sign and return one copy of this
agreement to evidence your acceptance of and agreement to the foregoing,
whereupon this agreement will become a binding agreement of each of our
respective corporations.
PINKERTON'S, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxx
President and Chief Executive Officer
Accepted and Agreed
to this 3rd day of
September, 1998
Securitas AB
By: /s/ Xxxxxx Xxxxxxxx
--------------------
Xxxxxx Xxxxxxxx
President and Chief Executive Officer
5
