Exhibit 5
9/24/2004
CONFIDENTIALITY, NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT
THIS CONFIDENTIALITY, NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT
(this "Agreement") is made as of this 24th day of September, 2004 by and among
JD Holdings, LLC ("Originator") and GIC Real Estate, Inc. ("Participant").
WHEREAS, Originator is considering entering into a transaction with
the entity set forth on Exhibit I attached hereto ("Target") (whether structured
as a purchase of assets, a purchase of securities, a merger, consolidation,
combination, recapitalization, refinancing, restructuring, reorganization or
otherwise, a "Transaction"); and
Participant may participate with Originator in the due diligence
review and negotiations regarding the Transaction and in the consummation of the
Transaction, in each case on such terms and in such capacity as may be mutually
agreeable to Originator and Participant (the "Participation");
WHEREAS, Originator or its Representative may execute a
confidentiality agreement with Target (a "Confidentiality Agreement") pursuant
to which Originator may agree to maintain the confidentiality of certain
information and to refrain from certain activities in respect of Target's
employees, and including for purposes herein, without limitation, all financial
analysis and models relating to various post-Transaction structures and
including all information and materials in respect of Originator which would
constitute confidential information if Originator were substituted for Target
throughout the Confidentiality Agreement and Participant were substituted for
Originator) (such information referred to herein as "Evaluation Material"); and
WHEREAS, in connection with the Participation, Participant may have
access to the Evaluation Material.
NOW, THEREFORE, for good and valuable consideration (including,
without limitation, Originator's making available the Evaluation Material to
Participant and Originator's engaging in discussions with Participant regarding
the Participation), the receipt and sufficiency of which is hereby acknowledged,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. The term "Representatives" means each party's affiliates and such
party's and its affiliates' directors, officers, partners, employees, agents and
advisors (including, without limitation, financial advisors, legal counsel and
accountants), and the term "person" shall include any corporation, company,
partnership, limited liability company, trust, governmental entity or
individual.
2. (a) Participant agrees that Participant will (i) use the
Evaluation Material solely for the purposes of the Participation, (ii) not,
directly or indirectly, use,
disseminate, disclose, discuss or reveal any Evaluation Material, and (iii)
otherwise treat and maintain in full confidence all Evaluation Material.
(b) Participant agrees that Participant will not disclose to
any person (including other possible bidders for Target and employees, customers
and suppliers of Target) that the Evaluation Material has been made available to
Participant, that Participant has inspected any portion thereof, the fact that
Originator is considering a possible Transaction, that discussions are or may
take place regarding a possible Transaction, that Originator and Participant are
considering or discussing Participant's possible participation in a Transaction,
or any other information regarding a possible Transaction, including the status
thereof.
(c) Neither Participant nor its Representatives shall initiate
any communications with any Representative of Target concerning the Evaluation
Material without Originator's prior written consent.
(d) "Evaluation Material" shall not include any information
which Participant can demonstrate (i) was or becomes generally available to the
public other than as a result of a disclosure by Participant or its
Representatives, or (ii) was or becomes available to Participant or its
Representatives on a nonconfidential basis from a source other than Originator
or its Representatives or Target or its representatives (provided that such
source is not known by participant to be bound by a confidentiality obligation
or fiduciary obligation prohibiting or otherwise restricting the disclosure of
such information) or (iii) is required by law, legal process or any applicable
government agency or court or other tribunal of competent jurisdiction to be
disclosed.
(e) The foregoing restrictions shall not apply to disclosures
by Participant to its Representatives to whom disclosure is required in order to
permit Participant to evaluate its participation in a possible Transaction and
to whom disclosure is made for the purposes of such evaluation; provided that
prior to making any such disclosure, Participant shall apprise its
Representatives of the confidential nature of such matters and the obligations
of Participant hereunder. Participant shall in any event be liable to Originator
for any actions by such persons which would constitute a breach of this
Agreement if taken by Participant.
(f) In the event that Participant or any Representative of
Participant is requested or becomes legally compelled (by oral questions,
interrogatories; requests for information or documents, subpoena, civil
investigative demands or similar process) to disclose any of the Evaluation
Material or take any other action prohibited by this Agreement, Participant
shall, to the extent practicable, provide Originator with prompt written notice
thereof (in reasonable detail) so that Originator may seek a protective order or
other appropriate remedy. In the event that such protective order or other
remedy is not obtained, Participant shall furnish only that portion of the
Evaluation Material or take only such action as is legally required by law or
binding order.
3. In the event that a Transaction is not consummated and upon
originator's written request, or otherwise upon Originator's written request,
all Evaluation Material supplied by Originator, Target or their respective
Representatives (and all copies, extracts or other reproductions in whole or in
part thereof, whether prepared by Originator or any of its
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Representatives or any other person) shall be returned to Originator or, with
the Originator's written permission, destroyed and not retained by Participant
or its Representatives in any form or for any reason except as required by law
or regulations. This provision applies to all documents, memoranda, notes,
computer programs and data bases and other writings whatsoever prepared by
Participant or its Representatives based on, containing or otherwise reflecting
the Evaluation Material.
4. To the extent the Evaluation Material includes or otherwise
involves intellectual property, technical data, technology, processes,
applications for patents, trade secrets or know-how, disclosure thereof to
Participant or its Representatives by or on behalf of Originator, Target or any
of their respective Representatives shall not be construed as the grant of any
license or of any right to use the same, except for the sole purpose of
evaluating and completing a potential Transaction.
5. Participant hereby covenants and agrees that for a period of
eighteen months following the date hereof, it shall not, without the prior
written consent of Originator (which will not be unreasonably withheld) directly
or indirectly:
(a) enter into negotiations, provide advice, provide any form
of financial assistance (including, without limitation, debt or equity
investments) or otherwise encourage, facilitate or consummate any transaction
involving Target (whether structured as an investment, a purchase or assets, a
purchase of debt or equity interests (including, without limitation, options,
warrants or other securities or instruments convertible into or exercisable or
exchangeable for debt or equity interests or equity appreciation rights, phantom
equity or similar instruments or rights containing equity-like features), a
merger, consolidation, combination, recapitalization, refinancing,
restructuring, reorganization or otherwise) without the prior express written
consent of Originator; or
(b) initiate discussions with respect to the prospective
employment of, or hire for employment, any employees of Target or any subsidiary
thereof.
6. Participant acknowledges and agrees that neither Originator nor
any Representative of Originator makes any representation or warranty, express
or implied, as to the accuracy or completeness of the Evaluation Material. Any
representations or warranties with respect to Originator, Target or otherwise
made in connection with the consummation of a potential Transaction shall be
contained only in a definitive agreement, if any, to which Participant and
Originator are parties. Originator and its Representatives expect that
Participant shall conduct its own independent investigation and analysis of
Target and a potential Transaction, and you agree that neither Originator nor
any of its Representatives shall have any liability to Participant or its
Representatives resulting from the use of the Evaluation Material supplied by
Originator, Target or any of its Representatives.
7. Nothing herein shall be deemed to obligate Participant to enter
into any transaction or arrangement with Originator or Target, and Originator
shall be entitled to terminate the Participation and to demand the return or
destruction of all Evaluation Materials by Participant at any time without
limiting Participant's obligations hereunder.
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8. Participant acknowledges and affirms that money damages would not
be a sufficient remedy for any breach of this Agreement by it and that
Originator shall be entitled to seek equitable relief, including injunction and
specific performance, as a remedy for any such breach. Such remedies shall not
be deemed to be the exclusive remedies for a breach of this Agreement, but shall
be in addition to all other remedies available at law or in equity. In the event
of litigation relating to this Agreement, if a court of competent jurisdiction
determines that Participant has breached this Agreement, then Participant shall
be liable for and shall pay to Originator the reasonable legal fees and expenses
and court costs incurred by Originator in connection with any such litigation,
including any appeal therefrom.
9. If any term, provision, covenant or restriction contained in this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be deemed affected, impaired or invalidated.
10. This Agreement may not be amended or waived, in whole or in
part, except with the written consent of Originator and Participant. It is
understood and agreed that no failure or delay by Originator in exercising any
right, power or privilege hereunder shall operate as a waiver hereof, nor shall
any single or partial exercise thereof preclude any other or future exercise
thereof or the exercise of any other right, power or privilege.
11. This Agreement shall be governed by and construed in accordance
with the internal laws of New York State.
12. The language used herein shall be deemed to be the language
mutually chosen by the parties hereto to express their intent and understanding,
and no doctrine of construction shall be applied against either party.
13. This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original and both of which together shall be
deemed to constitute one fully-executed Agreement.
14. This agreement shall expire upon the earlier of the date the
Transaction is consummated or eighteen months from the date hereof.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
Originator:
JD Holdings, LLC
By: /s/ Xxxxxxxx X. Xxxxxx
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Its: Managing Member
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Participant:
GIC Real Estate, Inc.
By: /s/ Xxxxxx Xxxxxxxx
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Its:
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Exhibit I
Name of Entity
Xxxx X. Xxxxxxx Hotels
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