Exhibit 99(c)(2)
CONFIDENTIALITY AND STANDSTILL AGREEMENT
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1. PURPOSE.
The parties hereto, First Technology, PLC, and Control Devices, Inc., an
Indiana corporation, may furnish certain confidential non-public information to
each other to assist them in evaluating a possible business combination. As a
condition to each party's furnishing such information to the other party (each
party furnishing such information being hereinafter referred to, with respect to
such information, as the "Disclosing Party", and each party receiving such
information being hereinafter referred to, with respect to such information, as
the "Receiving Party"), each party agrees, as set forth below, to treat any
information (herein collectively referred to as the "Evaluation Material") which
it receives as a Receiving Party from or on behalf of a Disclosing Party in
accordance with the provisions of this Agreement and to take or abstain from
taking certain other actions herein set forth.
The term "Evaluation Material" includes (i) all information prepared by the
Disclosing Party or its affiliates, directors, officers, employees, agents and
advisors (the affiliates, directors, officers, employees, agents and advisors of
a Disclosing Party or a Receiving Party, as the case may be, being referred to
collectively as the "Representatives") and (ii) all analyses, compilations,
studies or other material prepared by a Receiving Party or its Representatives
containing, based on or reflecting any information furnished by a Disclosing
Party or any of its Representatives. The term "Evaluation Material" does not
include information which (i) is already in the possession of a Receiving Party,
provided that such information is not known by such Receiving Party to be
subject to another confidentiality agreement with or other obligation of secrecy
to the Disclosing Party or a third party, or (ii) is or becomes generally
available to the public other than as a result of a disclosure by a Receiving
Party or any of its Representatives in
violation of this Agreement, or (iii) becomes available to a Receiving Party
from a source other than the Disclosing Party or its Representatives, provided
that such source is not known by such Receiving Party to be in breach of a
confidentiality agreement or other obligation of secrecy, or (iv) prior to
disclosure hereunder, can be demonstrated by the Receiving Party to be within
the possession of the Receiving Party.
2. CONFIDENTIALITY AND USE OF EVALUATION MATERIAL.
Each Receiving Party hereby agrees that the Evaluation Material will be
used solely for the purpose of evaluating a possible transaction involving the
parties and that the Evaluation Material will be kept confidential by such
Receiving Party and its Representatives; provided, however, that (i) unless
otherwise specified, Evaluation Material may be disclosed to Representatives of
the Receiving Party who need to know such information for the purpose of
evaluating any possible transaction involving the parties (it being understood
that such Representatives shall be informed of the confidential nature of such
information and shall be directed to treat such information confidentially and
in accordance with this Agreement), (ii) any disclosure of Evaluation Material
may be made to which a Disclosing Party consents in writing, and (iii) any
disclosure of Evaluation Material may be made as otherwise required by law in
the written opinion of counsel to the Receiving party (including, without
limitation, pursuant to any federal or state securities laws or pursuant to any
legal, regulatory or legislative proceeding or pursuant to any applicable stock
exchange rules), as contemplated by the immediately following sentence (the
"Legal Exception"):
In the event that a Receiving Party or anyone to whom such Receiving Party
supplies the Evaluation Material receives a request to disclose all or any
part of the information contained in the Evaluation Material under the
terms of a subpoena, order, civil investigation demand or similar process
or other oral or written request, issued by a court of competent
jurisdiction or by a federal, state or local, foreign or domestic,
governmental or regulatory body or agency, such
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Receiving Party agrees to the extent practicable to (i) promptly notify the
Disclosing Party of the existence, terms and circumstances surrounding such
a request, (ii) consult with the Disclosing Party as to the advisability of
taking legally available steps to resist or narrow such request, and (iii)
only disclose such information after complying with clauses (i) and (ii)
and exercising reasonable effort, if so requested by the Disclosing Party
and at the Disclosing Party's sole expense, to obtain, to the extent
practical, an order or other reliable assurance that confidential treatment
will be accorded to such portion of any disclosed information which the
Disclosing Party so designates.
Each Receiving Party 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.
In addition, except (i) with the prior written consent of the Disclosing
Party or (ii) as required or permitted under the Legal Exception, each Receiving
Party will not, and will direct its Representatives not to, disclose to any
person (A) the existence of this Agreement or (B) that the Evaluation Material
has been made available to it, or (C) in the event that the parties engage in
discussions or negotiations with each other or their Representatives, the fact
that discussions or negotiations are taking place concerning a possible
transaction among the parties or any of the terms, conditions or other facts
with respect to any such possible transaction, including the status thereof.
If and to the extent it is the written opinion of counsel to a Receiving
Party that it is necessary or advisable in litigation to support or defend
actions taken by such Receiving Party which are being reviewed or challenged in
such proceedings, such Receiving Party may disclose
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in such proceedings the matters described in the preceding paragraph and its
analyses, compilations, studies and other materials relating to possible
transactions which were prepared by such Receiving Party or its Representatives.
Each Receiving Party agrees to give the Disclosing Party advance written notice
of any such disclosures to the extent practicable under the circumstances.
3. STANDSTILL.
In consideration of being furnished the Evaluation Material and in view of
the fact that the Evaluation Material consists of confidential and non-public
information, each party agrees that, for the period set forth in the last
sentence of this paragraph, it and its affiliates (as defined in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended) shall not without the prior written authorization of the Board of
Directors of the other party (i) in any manner acquire, agree to acquire or make
any proposal to acquire, directly or indirectly, any securities of the other
party or any of its subsidiaries, (ii) in any manner acquire, agree to acquire
or make any proposal to acquire, directly or indirectly, any property of the
other party or any of its subsidiaries, except in the ordinary course of
business, (iii) 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 of, any voting securities of the other party
or any of its subsidiaries, (iv) 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, as amended) with respect to any voting securities of the other party or
any of its subsidiaries, (v) otherwise act, alone or in concert with others, to
seek to control or influence the management, Board of Directors or policies of
the other party, (vi) disclose any intention, plan or arrangement inconsistent
with the foregoing, or (vii)
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advise, assist or encourage any other persons in connection with any of the
foregoing. Each party also agrees, for the period set forth in the last
sentence of this paragraph, not to (i) request the other party or its
Representatives, directly or indirectly, to amend or waive any provision of this
paragraph (including this sentence) or (ii) take any action which might require
the other party to make a public announcement regarding the possibility of a
business combination or merger. The agreements set forth in this paragraph
shall otherwise survive the termination of this Agreement and shall not
terminate until June 30, 2000.
Each party further agrees that until a business combination between the
parties has been consummated or June 30, 2000 (whichever is earlier), it shall
not, directly or indirectly, solicit to employ any person who is, at the time of
such solicitation, an employee of the other party or any of its subsidiaries.
Each party understands the importance during the term of this Agreement of
limiting contacts regarding the subject matter of this Agreement to its
authorized personnel and the authorized personnel of the other party. Except
with the written consent of the other party, during the term of this Agreement
any party also agrees that neither it nor its affiliates shall initiate or
maintain any contact (except for those contacts made in the ordinary course of
business) with any customer, supplier or competitor of the other party or its
subsidiaries or any other person having a business or regulatory relationship
with the other party or its subsidiaries, regarding the operations of the other
party or its subsidiaries derived from the Evaluation Material.
4. NO WARRANTIES.
Although each Disclosing Party will endeavor to include in the Evaluation
Material information known to it which it believes to be relevant for the
purpose of the Receiving Party's
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investigation, each Receiving Party understands that neither the Disclosing
Party nor its Representatives have made or make any representation or warranty
as to the accuracy or completeness of the Evaluation Material. Each Receiving
Party agrees that neither the Disclosing Party nor its Representatives shall
have any liability to them or any of their Representatives resulting from the
use of the Evaluation Material.
5. RETURN OF EVALUATION MATERIALS.
Each Receiving Party agrees to (i) promptly redeliver to the Disclosing
Party or destroy, upon the latter's request, all written or otherwise tangible
Evaluation Material provided to it by the Disclosing Party or its
Representatives, and (ii) not retain any copies, extracts or other reproductions
in whole or in part of such written or otherwise tangible material. All other
Evaluation Material and documents, memoranda, notes, other writings and
otherwise tangible materials whatsoever prepared by a Receiving Party or its
Representatives based on the information in the Evaluation Material which were
not provided to the Receiving Party or its Representatives by the Disclosing
Party or its Representatives shall be destroyed, and such destruction shall be
certified in writing to the Disclosing Party by an authorized officer of the
Receiving Party supervising such destruction; provided that counsel to a
Receiving Party may, if requested by such Receiving Party, retain one copy of
any documents, memoranda, notes, other writings and otherwise tangible materials
prepared by such Receiving Party or its Representatives based upon the
Evaluation Material (and such Receiving Party shall notify the Disclosing Party
of its retention of any such materials); and provided further that any such
materials retained shall be held subject to the terms of this Agreement. The
agreements set forth in this paragraph shall otherwise survive the termination
of this Agreement and shall not terminate until December 31, 1999.
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6. BREACH.
Each Receiving Party agrees to be responsible for any breach of this
Agreement by any of its Representatives. Each party acknowledges and agrees
that money damages would not be a sufficient remedy for any breach of this
Agreement. Therefore, each party shall be entitled to equitable relief
including, without limitation, injunction and specific performance as a remedy
for any breach by the other party; and the party (including its Representatives)
which is in breach hereof shall not oppose the granting of such relief. Such
remedy shall not be deemed to be the exclusive remedy for a breach of this
Agreement, but shall be in addition to all other remedies available to a party
for all damages, costs and expenses (including reasonable attorneys' fees)
incurred by it in this regard.
7. FURTHER AGREEMENTS REQUIRED.
Each party agrees that unless and until a definitive agreement with respect
to a business combination of the parties has been executed and delivered,
neither party will be under any legal obligation of any kind whatsoever with
respect to such a transaction by virtue of this or any written or oral
expression with respect to such a transaction by any of its directors, officers,
employees, agents or any other Representatives thereof except, in the case of
this Agreement, for the matters specifically agreed to herein.
8. AMENDMENT.
This Agreement may be modified or waived only by a separate written
agreement, executed by each party, expressly so modifying or waiving this
Agreement.
9. NON-WAIVER.
Each party acknowledges and agrees that no failure or delay by the other
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any
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single or partial exercise thereof preclude any other further exercise thereof
or the exercise of any right, power or privilege hereunder.
10. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the respective successors and assigns
of the parties and shall inure to the benefit of, and be enforceable by, the
respective successors and assigns of the parties.
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11. NOTICE.
Any notice, request, demand, or other communication required or permitted
to be made under this Agreement shall be in writing and shall be delivered
personally or shall be sent by facsimile transmission. Any such notice shall be
deemed given when so delivered personally or sent by facsimile transmission (and
confirmed to have been received) to the address set forth below (or to any other
address subsequently furnished in writing by any party in accordance with this
paragraph), if to First Technology, PLC, then to:
First Technology, PLC
2 Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx, Xxxxx
Xxxxxxxxx, XX XX0 0XX
Attn: Xx. Xxxx X. Xxxxxxxx
Telephone: 00-0000000000
Facsimile: 44-1344622773
with a copy to:
Xxxxxx X. Xxxxx
Xxxxxx & Xxxxx, P.C.
Suite 200
000 Xxxx Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to Control Devices, Inc., then to:
Control Devices, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Strain, Esquire
Xxxxxx & Xxxxxxx, PC
4000 Bank Xxx Xxxxx
0
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Such notice, request, demand or other communication will be deemed to have been
given as of the date so delivered personally or sent by facsimile.
12. SEVERABILITY.
If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, the remainder of the
provisions of this Agreement shall remain in full force and effect. The parties
shall endeavor in good faith negotiations to replace any invalid, illegal or
unenforceable provision with a valid, legal and enforceable provision, the
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provision.
13. TERM.
The term of this Agreement shall commence as of June 1, 1998. Except as
provided in Section 3 hereof, this Agreement shall terminate at Midnight,
December 31, 1999.
14. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Indiana, United States of America, without regard to the
conflict of laws principles thereof.
15. HEADINGS.
The headings in this Agreement are for convenience of reference only and
shall not in any way limit or define the content, substance or effect of the
Agreement.
16. COUNTERPARTS.
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This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which shall constitute the same
agreement.
FIRST TECHNOLOGY, PLC. CONTROL DEVICES, INC
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx, Xx.
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Xxxx X. Xxxxxxxx Xxxxx X. Xxxxxxx, Xx.
Its Executive Chairman Its Chairman of the Board
Date: June , 1998 Date: June , 1998
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