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Exhibit (d) (2)
March 9, 2001
Xxxxxxxx Companies, Inc.
One Xxxxxxxx Center, 49-1
Tulsa, OK 74172
Attention: Xxxx Xxxxxx
Ladies and Gentlemen:
You have requested information regarding Xxxxxxx Resources
Corporation (the "Company") for the purposes of evaluating a possible business
combination involving the Company and you (a "Transaction"). It is understood
and agreed that this agreement creates no obligation to enter into any
Transaction or any agreement relating to a Transaction. To induce the Company to
furnish information to you, you hereby agree as follows:
1. As used herein:
"Act" means the Securities Exchange Act of 1934, as amended;
"Affiliate" means any Person that (i) directly or indirectly
controls you, (ii) directly or indirectly is controlled by you or (iii)
is under direct or indirect common control with you;
"Information" means information regarding the Company or any of
its subsidiaries or their respective assets or businesses which is
furnished to you by the Company or its representatives;
"Person" shall have the meaning contained in Section 3(a)(9) of
the Act; and
"Restricted Period" means the period commencing on the date
hereof and ending on the close of business on May 11, 2001.
2. All Information will be kept confidential by you, except
that you may disclose or make available Information to your directors, officers
and employees and to representatives of your advisors for the exclusive purpose
of assisting you in the evaluation of a possible Transaction, all of whom shall
be specifically informed by you or your representatives of the confidential
character of such Information and that by receiving such information they are
agreeing to be bound by the terms of this agreement relating to the confidential
treatment of such Information. You will not use, or permit any of your
representatives to use, any of the Information for any purpose other than the
evaluation of a possible Transaction, and you will not make any Information
available to any Person for any other purpose whatsoever.
3. You hereby acknowledge that you are aware (and that
prior to the disclosure of any Information to any Person pursuant to paragraph 2
such Person will be advised)
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that the United States securities laws prohibit any Person who has material
non-public information about a company from purchasing or selling securities of
such company 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 the event that you disclose any
Information to any Person, whether or not such disclosure is permitted under
paragraph 2, you shall be liable to the Company for any failure by such Person
to treat such Information in the same manner as you is obligated to treat such
Information under the terms of this agreement.
4. Unless specifically requested in writing in advance by
the Company, you will not at any time during the Restricted Period (and you will
not at any time during the Restricted Period assist or encourage others to):
(a) acquire or agree, offer, seek or propose to
acquire, directly or indirectly, alone or in concert with any
other Person, by purchase or otherwise, any ownership,
including, but not limited to, beneficial ownership as defined
in Rule 13d-3 under the Act, of any of the assets, businesses or
securities of the Company or any subsidiary thereof, or any
rights or options to acquire such ownership (including from any
third party);
(b) solicit proxies or consents (as such terms are
defined in Rule 14a-1 under the Act), whether or not such
solicitation is exempt under Rule 14a-2 under the Act, with
respect to any matter from holders of any shares of stock of the
Company or any securities convertible into or exchangeable for
or exercisable (whether currently or upon the occurrence of any
contingency) for the purchase of such stock, or make any
communication exempted from the definition of solicitation by
Rule 14a-1(l)(2)(iv) under the Act;
(c) initiate, or induce or attempt to induce any
other Person, entity or group (as defined in Section 13(d)(3) of
the Act) to initiate, any stockholder proposal, consent
solicitation or tender offer for any securities of the Company
or any subsidiary thereof, any change of control of the Company
or any subsidiary thereof or the convening of a stockholders'
meeting of the Company or any subsidiary thereof;
(d) otherwise seek or propose to influence or
control the management or policies of the Company or any
subsidiary thereof;
(e) enter into any discussions, negotiations,
arrangements or understandings with any other Person with
respect to any matter described in the foregoing subparagraphs
(a) through (d);
(f) take any action inconsistent with any of the
foregoing subparagraphs (a) through (e); or
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(g) take any action not required by law with respect
to any of the matters described in this paragraph 4 that
requires public disclosure.
5. If at any time during the Restricted Period you are
approached by any Person concerning your or their participation in a transaction
involving any of the assets, businesses or securities of the Company or any
subsidiary thereof, you will promptly inform us of the nature of such contact
and the parties thereto.
6. Except with the Company's prior written approval, you
will not disclose, and you will not permit your representatives to disclose, to
any Person other than the Persons described in paragraph 2, the fact that you
are engaged in discussions with the Company regarding a Transaction (or are
participating in the Company's publicly announced process for soliciting
proposals for a possible Transaction), the fact that the Information has been
made available to you or that you have inspected any portion of the Information
or the fact that you are subject to any of the restrictions described in
paragraph 4; provided, however, that you may make such disclosure if you have
received the opinion of your outside counsel that such disclosure must be made
by you in order that you not commit a violation of law and, if the action which
is to be disclosed was in violation of paragraph 4, such disclosure expressly
states such violation.
7. In the event that you are requested in any proceeding to
disclose any Information received by you or any matter subject to paragraph 6,
you will give us prompt notice of such request so that we may seek an
appropriate protective order. If in the absence of a protective order you are
nonetheless compelled to disclose any such Information or matter, you may
disclose such Information or matter without liability hereunder, provided that
you give us written notice of the Information or matter to be disclosed as far
in advance of its disclosure as is practicable and uses its best efforts to
obtain assurances that confidential treatment will be accorded to such
Information or matter.
8. The restrictions with respect to Information set forth
in paragraph 2 shall not apply to any Information furnished to you by the
Company or its representatives which you demonstrate (i) is on the date hereof
or hereafter becomes generally available to the public other than as a result of
a disclosure by you or your representatives or (ii) was available to you on a
nonconfidential basis prior to its disclosure to you by the Company or its
representatives or becomes available to you on a nonconfidential basis, in each
case from a source other than the Company or its representatives, which source
was not itself bound by a confidentiality agreement with the Company or its
representatives and had not received such information, directly or indirectly,
from a Person so bound.
9. The Company does not make any representation or warranty
as to the accuracy or completeness of the Information provided to you. Neither
the Company nor any of its representatives shall have any liability resulting
from the use of the Information by you or any of your representatives.
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10. Upon our request at any time, you will promptly
redeliver to us all copies of documents containing Information and will promptly
destroy all memoranda, notes and other writings prepared by you or by any Person
referred to in paragraph 2 based on such Information.
11. You shall cause each of your Affiliates to comply with
the terms of paragraphs 2, 3, 4, 5, 6, 7, 8 and 10 (construing such paragraphs
for such purposes to refer also to such Affiliates in each instance where there
is a reference to you).
12. You acknowledge that irreparable damage would occur to
the Company in the event any of the provisions of this agreement were not
performed in accordance with their specific terms or were otherwise breached.
Accordingly, the Company shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this agreement and to enforce specifically
the terms and provisions hereof in any court of competent jurisdiction in the
United States of America or any state thereof, in addition to any other remedy
to which the Company may be entitled at law or in equity.
13. If any term or provision of this agreement or any
application hereof shall be invalid or unenforceable, the remainder of this
agreement and any other application of such term or provision shall not be
affected thereby.
14. This agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but such counterparts shall constitute one and the same instrument.
15. This agreement contains the entire understanding of the
parties hereto with respect to the matters covered hereby and may be amended
only by an agreement in writing executed by the Company and you.
16. This agreement shall be binding upon, inure to the
benefit of and be enforceable by our respective successors and assigns.
17. This agreement shall be governed by and construed in
accordance with the internal laws (as opposed to conflict of law provisions) of
the State of New York.
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If the foregoing correctly sets forth our agreement as to the
matters set forth herein, please confirm our agreement by executing and
returning a copy of this agreement to the undersigned.
Very truly yours,
XXXXXXX RESOURCES CORPORATION
By: XXXXXXX, XXXXX & CO., as financial
advisor to Xxxxxxx Resources Corporation
By: /s/ Xxxxxxx Xxxxx & Co.
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Name:
Title:
The foregoing terms are agreed to:
/s/ Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
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Name:
Title: Xxxx.Xxxx.XXX
