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Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
November 21, 1995
VIA FACSIMILE
Xx. Xxxxxxx X. Xxxxxxx,
Wachtell, Lipton, Xxxxx & Xxxx,
00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Re: CBI Confidentiality Agreement
Dear Dick:
We are in receipt of your November 20 draft confidentiality
agreement in connection with Praxair's proposed acquisition of CBI.
Praxair is prepared to execute such agreement in the form of the November
20 draft, but only with the changes noted on the enclosed xxxx-up of such
draft.
Praxair, as a bidder for CBI, has a unique status among
interested participants in the process. The entry into the November 20
draft of the confidentiality agreement, without the changes noted, would
materially prejudice Praxair, among other things, because it would force
Praxair to terminate its current tender offer and all related actions in
furtherance of such tender offer.
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I would like to reiterate that Praxair continues to insist that
it receives the same access to information and individuals at CBI and its
subsidiaries as that received by other interested third parties in terms of
both substance and timing. Please indicate to me at (000) 000-0000 or
Xxxxxx X. Xxxxxxx at (000) 000-0000 whether the enclosed xxxx-up is
acceptable.
Very truly yours,
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
(Attachment)
cc: Xxxxx X. Chaiftez
(Praxair, Inc.)
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November 20, 1995
Praxair, Inc.
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Gentlemen:
You have requested information concerning CBI Industries, Inc.
(the "Company") in connection with a possible transaction with the Company
or its shareholders. Except as required by law or judicial process, you
will treat confidentially any information furnished to you by or on behalf
of the Company (the "Evaluation Material"; provided, however, that the term
"Evaluation Material" does not include, and your confidentiality
obligations hereunder do not apply to, information which was or becomes
generally available on a non-confidential basis or information which is
available to you or becomes available to you from a third party not known
by you to be under any obligation of confidentiality).
You will not use the Evaluation Material in any way detrimental
to the Company or its shareholders; provided, however, that you may
disclose any Evaluation Material to your directors, officers, employees,
agents, advisors or financial institutions which are potential financing
sources who need to know such information for the purpose of evaluating the
transaction (it being understood that they shall be informed by you of the
confidential nature of such information and that by receiving such
information they are agreeing to be bound by this agreement).
In the event that you are requested in any proceeding to
disclose any Evaluation Material, you will give the Company prompt notice
of such request so that the Company may seek an appropriate protective
order. If in the absence of a protective order you are nonetheless
compelled by an order of a court of competent jurisdiction to disclose
Evaluation Material, you may disclose such information without liability
hereunder; provided, however, that you give the Company written notice of
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the information to be disclosed as far in advance of it's disclosure as is
practicable and, upon the Company's request and at the Company's expense,
use your reasonable efforts to obtain assurances that confidential treatment
will be accorded to such information.
You hereby acknowledge that you are aware of the restrictions
imposed by the United States securities laws on any person who has received
from an issuer material, non-public information 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 in reliance upon
such information.
* PLEASE INSERT RIDER A HERE.
* PLEASE DELETE THE TEXT IN THE SQUARE-BRACKETS BELOW:
[For a period of two years from the date hereof you and your
affiliates will not (and you and they will not assist or, encourage others
to), directly or indirectly, unless specifically requested in writing in
advance by the Company:
(i) acquire or agree, offer, seek or propose to acquire (or
request permission to do so), ownership (including, but not
limited to, beneficial ownership as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of
any of the Company's assets or businesses or any securities
issued by the Company, or any rights or options to acquire
such ownership (including from a third party), or
(ii) seek or propose to influence or control the Company's
management or the Company's policies (or request permission
to do so), or
(iii) enter into any discussions, negotiations, arrangements or
understandings with any third party with respect to any of
the foregoing (or request permission to do so).]
You shall not make any disclosure concerning the subject matter
of the prior paragraphs, including that you are having or have had
discussions with the Company, and the Company will not make disclosure of
such discussions which identifies you or your affiliates as parties
thereto, except as the party making such disclosure reasonably believes
is required by law.
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For two years from the date hereof you will not, except with
the prior consent of the Company, (i) initiate contact (except for those
contacts made in the ordinary course of business) with any executive or key
employee of the Company regarding its business, operations, prospects or
finances, and (ii) directly solicit for hire any person with whom you have
had contact during the course of your investigation relating to a possible
transaction with the Company or its shareholders and known to you to be
employed by the Company in an executive capacity.
* PLEASE DELETE THE TEXT IN THE SQUARE BRACKETS IN THE PARAGRAPH BELOW:
Notwithstanding anything in this agreement to the contrary, the
Company agrees that if any Evaluation Material is provided to any other
party in connection with a possible transaction with the Company or its
shareholders on terms as regards the matters described in this agreement
which are less restrictive to such other party than those contained in this
agreement are to you, then this agreement will be deemed to have been
modified to provide you with the benefit of such less restrictive terms,
and the Company will provide you with an amended agreement reflecting such
terms. [If the Company publicly announces a definitive agreement with a
third party for a transaction involving the acquisition of a majority of
the outstanding voting power of the Company by such third party, or a
reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of the Company (unless all or
substantially all of the individuals and entities who were the beneficial
owners of the outstanding voting power of the Company immediately prior to
such transaction would beneficially own 60% or more of the outstanding
voting power of the corporation resulting from such transaction), then the
restrictions contained in the two paragraphs immediately preceding the
preceding paragraph will be deemed to have been terminated to the extent
necessary to allow you to make a proposal for a transaction which would
result in a per share value which is higher than the per share value
expected to be realized in such publicly announced transaction between the
Company and a third party. If a transaction with a third party of the type
described in the preceding sentence is consummated, then the restrictions
contained in the preceding three paragraphs will be deemed to have been
terminated.]
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Upon the Company's request you will promptly redeliver to the
Company or destroy all copies of the Evaluation Material and will destroy
all memoranda, notes and other writings prepared by you or your directors,
officers, employees, agents or affiliates based on the Evaluation Material.
You understand that neither the Company nor any of its representatives or
advisors makes any representation or warranty as to the accuracy or
completeness of any Evaluation Material which may be furnished to you. You
agree that neither the Company nor its representatives or advisors shall
have any liability to you or any of your representatives resulting from the
use of the Evaluation Material.
You and the Company agree that money damages would not be a
sufficient remedy for any breach of this agreement by you or the Company or
your or the Company's directors, officers, employees, agents or affiliates,
and that in addition to all other remedies the Company or you, as the case
may be, shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach, and you and the Company
further agree to waive, and to use your or the Company's reasonable efforts
to cause your or the Company's directors, officers, employees, agents or
affiliates to waive, any requirements for the securing or posting of any
bond in connection with such remedy.
This agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without giving effect to its
conflict of laws principles or rules.
This agreement shall terminate upon the second anniversary
hereof.
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If you are in agreement with the foregoing, please so indicate
by signing and returning one xxx of this agreement which will constitute an
agreement between you and the Company with respect to the matters set forth
herein.
Very truly yours,
CBI INDUSTRIES, INC.
By:
Confirmed and Agree to:
PRAXAIR, INC.
By:
Name:
Title:
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RIDER A
Notwithstanding anything in this agreement to the
contrary, you and your affiliates shall be entitled to
disclose certain Evaluation Material, or summaries thereof,
in filings made pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), in connection with
the current tender offer, dated November 3, 1995, by PX
Acquisition Corp. for securities of the Company, as such
offer may be amended from time to time (the "Offer"), if you
reasonably believe such disclosure is required by the
Exchange Act in connection with continuing or consummating
the Offer.
