EXHIBIT 99(d)(3)
June 28th, 2000.
VIA FAX - (000) 000-0000
HARD COPY VIA COURIER TO KINGSEY FALLS
Xx. Xxxxxx X. Xxxx
Vice-President Legal Affairs and
Corporate Secretary
CASCADES INC.
000 Xxxxx Xxxxxxxx Xxxxxx
X.X. Xxx 00
Xxxxxxx Xxxxx, Xxxxxx
X0X 0X0
Re: Confidential Disclosure and Standstill Agreement
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Dear Sirs:
Cascades Inc. or any of its affiliates (collectively "Recipient") and
Xxxxx Corporation ("Xxxxx") are considering entering into discussions concerning
a possible strategic transaction between them. As a condition to Xxxxx agreeing
to furnish the Evaluation Material (as defined hereinafter) to Recipient,
Recipient shall agree, as set forth below, to treat confidentially all
information Xxxxx or its representatives furnish to Recipient or its
representatives (which term shall include its directors, officers, employees,
accountants, lawyers, agents and advisors), whether furnished before or after
the date of this Agreement and whether furnished in writing, orally or by means
of inspection (such information being collectively referred to herein as the
"Evaluation Material").
1. The term "Evaluation Material" does not include any information that
(i) at the time of disclosure or thereafter is or becomes generally available to
the public other than as a result of a wrongful disclosure by Recipient or its
representatives, or (ii) is already in Recipient's or its representatives'
possession or becomes available to Recipient or its representatives on a
non-confidential basis from a source other than Xxxxx, its representatives or
its agents, provided that such source is not bound by a confidentiality
agreement with Xxxxx, its representatives or its agents or otherwise prohibited
from transmitting the information to Recipient or its representatives by a
contractual, legal or fiduciary obligation, or (iii) was independently acquired
or developed by Recipient without violation of any of its obligations under this
Agreement.
2. Recipient hereby agrees that the Evaluation Material will be used by
it solely for the purpose of evaluating a possible transaction between Xxxxx and
Recipient (the "Proposed Transaction") and will be kept confidential; provided,
however, that (i) any of such information may be disclosed to its
representatives who need to know such information for the purpose of evaluating
any such Proposed Transaction (it being understood that such representatives
shall be informed by Recipient of the confidential nature of such information
and shall be directed by Recipient, and shall have agreed, to treat such
information confidentially and to be bound by the terms of this Agreement and
that Recipient shall be responsible for any disclosures by its representatives),
or (ii) any such information may be disclosed if Xxxxx consents in writing prior
to such disclosure.
3. In addition, neither party will, directly or indirectly, disclose to
any person (i) the fact that any investigation, discussions or negotiations are
taking or have taken place concerning a possible transaction between Xxxxx and
Recipient, (ii) that Recipient has requested or received Evaluation Material, or
(iii) any of the terms, conditions or other facts with respect to any such
possible transaction, including the status thereof. The term "person" as used in
this Agreement shall be broadly interpreted to include, without limitation, any
corporation, company, governmental agency or body, group, partnership, or other
entity or individual.
4. In the event that Recipient or its representatives are requested or
required (by oral questions, interrogatories, requests for information or
documents, subpoena, court order, civil investigative demand or similar process)
to disclose all or any part of the information contained in the Evaluation
Material (or to disclose that any investigation, discussions or negotiations are
taking or have taken place concerning a possible transaction), Recipient agrees
to immediately notify Xxxxx of the existence, terms and circumstances
surrounding such a request so that Xxxxx may seek an appropriate protective
order and/or waive Recipient's compliance with the provisions of this Agreement.
In the event that such protective order or other remedy is not obtained or Xxxxx
waives compliance with the relevant provisions of this Agreement, Recipient (or
such other persons to whom such request is directed) will furnish only that
portion of the Evaluation Material which, in the written opinion of its counsel,
is legally required to be disclosed and, upon Xxxxx'x request, use its
commercially reasonable best efforts to obtain assurances that confidential
treatment will be accorded to such information. The Recipient will cooperate
with Xxxxx if it decides to seek a protective order, confidential treatment or
other similar remedy.
5. Unless otherwise agreed to by Xxxxx in writing, all (i)
communications regarding any possible transaction, (ii) requests for additional
information, (iii) requests for facility tours or management meetings, and (iv)
discussions or questions regarding procedures, will be submitted or directed
exclusively to Xxxxx as designated contact for such purposes.
6. If Recipient decides not to participate in the Proposed Transaction,
it shall promptly notify Xxxxx, in writing, of such decision. All Evaluation
Material in tangible form (whether in written form, electronically stored or
otherwise) provided by Xxxxx or its
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representatives will be returned by the Recipient to Xxxxx immediately upon
request, or in the event Recipient decides not to proceed with the Proposed
Transaction, without retention of any copies, extracts or other reproductions in
whole or in part in any form, including but not limited to paper or electronic
media, of such written material thereof. All other Evaluation Material in
tangible form, including analyses, compilations, studies, personal notes, or
other documents (whether in written form, electronically stored or otherwise)
prepared by the Recipient or any of its representatives, and any Evaluation
Material not so requested and returned, will be destroyed, with such destruction
to be confirmed in writing to Xxxxx by an authorized officer supervising such
destruction. Except as otherwise provided in this Agreement, any retained
Evaluation Material (whether in written form, electronically stored or
otherwise) will continue to be subject to this Agreement.
7. It is further understood and agreed by Recipient that no failure or
delay by Xxxxx in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder.
8. Recipient hereby agrees that Xxxxx will not be obligated to pay any
fees to any advisors, brokers, finders, or other parties claiming to represent
Recipient in the Proposed Transaction.
9. This Agreement does not constitute or create any obligation of Xxxxx
to provide any Evaluation Material or other information to the Recipient, but
merely defines the rights, duties and obligations of the parties with respect to
the Evaluation Material to the extent it may be disclosed or made available.
Under no circumstances is Xxxxx obligated to disclose or make available any
information, including any Evaluation Material, that Xxxxx in its sole
discretion determines not to disclose. Recipient understands and acknowledges
that neither Xxxxx nor its shareholders, directors, officers, employees, agents
or representatives have made or make any representation or warranty, express or
implied, as to the accuracy or completeness of the Evaluation Material or any
information contained therein. Recipient also agrees, to the fullest extent
permitted by law, that neither Xxxxx nor its shareholders, directors, officers,
employees, agents, or representatives shall have any liability to Recipient, its
representatives or any other person on any basis (including, without limitation,
in contract, tort, under federal or state securities laws or otherwise)
resulting from the parties participation in evaluating a possible transaction,
the review by Recipient of Xxxxx, or the use or content of the Evaluation
Material. Recipient agrees that it is not entitled to rely on the accuracy or
completeness of the Evaluation Material. Recipient understands and agrees that
no contract or agreement providing for a transaction shall be deemed to exist
unless and until a definitive agreement providing for a transaction has been
executed and delivered, and Recipient hereby waives, in advance, any claims
(including, without limitation, breach of contract) in connection with a
transaction unless and until the parties have entered into a definitive
agreement, provided however, that the foregoing shall not be deemed to
constitute a waiver by either party of any claims for breach of any provisions
of this Agreement.
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10. Recipient hereby acknowledges that it is aware, and that it will
advise its representatives, that United States securities laws prohibit 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.
Recipient agrees that it will not use or permit any third party to use, and that
it will use reasonable efforts to assure that none of its representatives will
use or permit any third party to use, any Evaluation Material in contravention
of the United States securities laws, including, but not limited to the
Securities Exchange Act of 1934, as amended or any rules and regulations
promulgated thereunder.
11. In consideration of the Evaluation Material being furnished to
Recipient, Recipient hereby agrees that, for a period of two years from the date
hereof, neither Recipient nor any of its representatives or affiliates will
directly or indirectly solicit or direct anyone else to solicit any officers or
employees of Xxxxx or its subsidiaries (i) to terminate his or her employment or
other relationship with Xxxxx or its subsidiaries; or (ii) to seek or accept
employment or other affiliation with Recipient or its representatives,
subsidiaries or affiliates without obtaining the prior written consent of Xxxxx.
Recipient will not be prohibited from employing any officer or management
employee of Xxxxx who contacts Recipient as a result of Recipient conducting
generalized solicitations for employment. For the purposes hereof, "officers or
employees" include any former officer or employee of Xxxxx for a period of six
months following his or her ceasing to be an officer or employee of Xxxxx.
12. Recipient hereby agrees that it will not use the Evaluation Material
in any way directly or indirectly detrimental to Xxxxx, its affiliates or the
Proposed Transaction. In particular, Recipient agrees that for a period of two
years from the date of the signing of this Agreement, Recipient and its
affiliates will not knowingly, as a result of knowledge or information obtained
from the Evaluation Material or otherwise in connection with the Proposed
Transaction, divert or attempt to divert any business or customer of Xxxxx or
any of its affiliates.
13. Recipient further agrees that, for a period of one year from the
date of this Agreement, Recipient shall not, and shall cause its representatives
and affiliates, other than its financial advisor (acting for its own account),
unless such shall have been specifically agreed to in writing by the Board of
Directors of Xxxxx, not to, in any manner, directly or indirectly, (a) effect or
seek, offer or propose to effect, participate in or cause (i) any take-over bid,
tender or exchange offer, merger, consolidation or other business combination
involving Xxxxx or any of its subsidiaries; (ii) any recapitalization,
restructuring, liquidation, dissolution or other extraordinary transaction with
respect to Xxxxx or any of its subsidiaries; (iii) any "solicitation" of proxies
or consents to vote any voting securities of Xxxxx or attempt to advise or
influence the conduct of the shareholders of Xxxxx; or (iv) any acquisition of
any securities (or beneficial ownership thereof) or assets of Xxxxx or any of
its subsidiaries, (b) demand a copy of the stock ledger list of stockholders, or
any other books and records of Xxxxx or any of its subsidiaries, (c) act jointly
or in concert with any person in order to propose or effect any transaction,
activity or matter of the type set forth in (a) above, (d) form, join or in any
way participate in a "group" (as
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defined under the Securities Exchange Act of 1934), (e) take any action which
might force Xxxxx to make a public announcement regarding any of the types of
matters set forth in (a) above, (f) otherwise act, alone or in concert with
others, to seek to control or influence the management, Board of Directors or
policies of Xxxxx, or (g) enter into any discussions or arrangements with any
third party with respect to any of the foregoing. Notwithstanding any
restrictions in this paragraph 13 to the contrary, Recipient may enter into
discussions with or make an acquisition proposal to Xxxxx Xxxxx provided that
prior to the purchase by Recipient of any shares in which Xxxxx Xxxxx has a
beneficial interest, Recipient shall make an offer to all other shareholders of
Xxxxx to purchase their shares at terms no less favorable than those being
offered to Xx. Xxxxx.
14. It is further understood and agreed by Recipient that money damages
would not be sufficient remedy for any breach of this Agreement by Recipient or
its representatives or agents and that Xxxxx shall be entitled to 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 to Xxxxx. Recipient further
agrees to waive, and to use its best efforts to cause its representatives to
waive, any requirement for the securing or posting of any bond in connection
with such remedies. Recipient will be responsible for and will indemnify and
hold harmless Xxxxx from any damage, loss, cost or liability (including, but not
limited to reasonable attorney's fees and the costs of enforcing such
obligations under this indemnity) arising out of or resulting from any breach by
Recipient or its representatives of its obligations hereunder. In the event of
litigation relating to this Agreement, the unsuccessful party to such litigation
shall be liable and pay to the prevailing party the reasonable legal fees
incurred by the prevailing party in connection with such litigation including
any appeal therefrom. Recipient hereby agrees to be responsible for any breach
of this Agreement by its representatives.
15. Xxxxx and Recipient each agree that unless and until a definitive
agreement between Xxxxx and Recipient with respect to any Proposed Transaction
has been executed and delivered, neither Xxxxx nor Recipient 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 except for the matters specifically agreed to in this Agreement. The
agreements set forth herein may be modified or waived only by a separate writing
between Xxxxx and Recipient expressly so modifying or waiving such agreements.
Xxxxx reserves the right, in its sole discretion and without any prior notice to
Recipient, to reject any and all proposals which may be made by or on behalf of
Recipient and to suspend or to terminate discussions or negotiations at any time
and for any reason. Xxxxx and its representatives shall not have any liability
to Recipient on account of any such termination.
16. If any term or provision of this Agreement or any application
thereof to any circumstances, shall, to any extent and for any reason, be held
to be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to circumstances other than those to which
it is held invalid or unenforceable, shall not be effected thereby and shall be
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construed as if such invalid or unenforceable provision had never been contained
herein and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
If you are in agreement with the foregoing, please so indicate by signing
and returning one copy of this Agreement, which will constitute our mutual
agreement with respect to the matters set forth herein.
Xxxxx Corporation
By: /s/ Xxxxxx X. XxxXxxxxx
_______________________________________
Xxxxxx X. XxxXxxxxx
Chairman and Chief Executive Officer
Confirmed and agreed to as of the date written above:
Cascades Inc.
By: /s/ Xxxxxxx Xxxxxxx
________________________________
Name: Xxxxxxx Xxxxxxx
Title: President and
Chief Executive Officer
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