November 25, 1997
Xx. Xxxxxxx X. XxXxxxxxx
Chairman & CEO
Precision Castparts Corporation
0000 XX Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000-0000
Re: Confidentiality Agreement
-------------------------
Dear Xxxx:
You have expressed interest in a possible transaction (the
"Transaction") involving Environment One Corporation (the "Company") and have
requested certain information concerning the Company. As a condition of
furnishing you with such information, including, without limitation, certain
non-public confidential information and proprietary business practices and
concepts concerning the Company's business, properties, finances, affairs and
technology, whether or not such information is in writing or given orally,
the Company is requiring that you agree, as set forth below, to treat
confidentially such information, any other information that the Company, The
Nassau Group, Inc. or the Company's affiliates, advisors, representatives,
employees or agents (together with The Nassau Group, Inc. the "Company
Parties") furnish to you and any notes, analyses, compilations, studies,
interpretations, or other documents prepared by you or your representatives
(as defined below) that contain or are based upon such information
(collectively, the "Evaluation Material")
For purposes of this letter agreement, any Evaluation Material
furnished to you by an officer or employee, or an agent or advisor to the
Company, regardless of the date furnished and regardless of the capacity in
which such officer, employee, agent or advisor purports to be acting, shall
be deemed Evaluation Material furnished by or on behalf of the Company. You
agree, on your behalf and on behalf of your Representatives, (i) that the
Evaluation Material will be used only in connection with, and to assist in
your evaluation of, the Transaction, (ii) that all Evaluation Material will
be kept strictly confidential by you and your Representatives, and (iii) that
all information furnished by the Company or the Company Parties pursuant to
this Agreement will remain the exclusive property of the Company and that you
and your Representatives will hold all of such information in confidence for
the exclusive benefit of the Company (except that such information may be
used by you for the purposes contemplated herein). You specifically agree
that Evaluation Material shall not be used, directly or indirectly to compete
with or emulate the Company's business. You agree to transmit the Evaluation
Material only to those of your directors, officers, employees, affiliates,
agents, attorneys, accountants, advisors, financing sources or partners, and
others ("Representatives") who need to know such information for the purpose
of assisting you in your evaluation of the Transaction and who shall (i) be
advised by you of this Agreement and (ii) agree to be bound by the provisions
of this Agreement. You and your Representatives shall not, except as
described in the previous sentence or as hereinafter provided, disclose
Evaluation Material or any of the terms, conditions, or other facts with
respect to the possible Transaction to others without the prior written
consent of the Company. Without limiting the foregoing, you and your
Representatives agree to keep even existence of discussions between you and
the Company strictly confidential. You shall be responsible for any such
breach of this Agreement by you and/or any of your Representatives.
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Xx. Xxxxxxx X. XxXxxxxxx
Precision Castparts Corporation
November 25, 1997
If you conduct any portion of your investigation on premises made
available by the Company, you shall not remove Evaluation Material made
available by the Company from those premises without the Company's consent. If
you determine that you do not wish to proceed with a Transaction, you will so
notify the Company immediately.
You further agree that any and all requests for Evaluation Material,
other communications regarding the possible Transaction, and requests for
additional information shall be made only to individuals designated to you in
writing by the Company and that, without the Company's prior written consent,
you will not initiate any contacts of any kind with the staff or employees of
the Company. Upon the Company's request, you will promptly identify in writing
each person or other entity to whom any part of the Evaluation Material is
disclosed.
The Company and the Company Parties make no representation or
warranty, expressed or implied, as to the accuracy or completeness of any or all
of the Evaluation Material. The Company shall have no obligation to update any
Evaluation Material. The Company and Company Parties will have no liability for
actions taken by you or your Representatives in reliance on any information
provided by the Company or the Company Parties with respect to a possible
Transaction. Unless and until a definitive Transaction agreement between the
Company and you is executed and delivered, the Company will not have any legal
obligation of any kind by virtue of this Agreement or any other written or oral
expression with respect to the possible transaction.
It is agreed that we may elect at any time to terminate further
access to, and your review of, the Evaluation Material and that as soon as
practicable after such termination, you will, upon the Company's request,
return all Evaluation Material, but that such termination will not affect or
eliminate your obligations and those of your Representatives by reason of
this Agreement. It is further agreed that we shall not be obligated pursuant
to this Agreement to disclose any particular confidential information or
Evaluation Material.
In the event that you or any of your Representatives are required
(by oral questions, interrogatories, requests for information or document
subpoena, or similar legal process) to disclose any of the Evaluation
Material, you will provide the Company with prompt notice of such request(s)
so that the Company may seek an appropriate protective order or other
appropriate remedy and/or waive your compliance with the provisions of this
Agreement. If in the absence of a protective order or other remedy or the
receipt of a waiver by the Company, you or your Representatives are
nonetheless, in the written opinion of counsel, legally compelled to disclose
Evaluation Material to any tribunal or else stand liable for contempt or
suffer other censure or penalty, you or your Representatives may, without
liability hereunder, disclose to such tribunal only that portion of the
Evaluation Material which such counsel advises you is legally required to be
disclosed, provided that you exercise your best efforts to preserve the
confidentiality of the Evaluation Material, including, without limitation, by
cooperating with the Company to attain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded the
Evaluation Material by such tribunal; provided, however, that after any such
disclosure such disclosed information shall remain confidential and subject
to the terms of the Agreement.
In the event that the Transaction is not effected after you have
been furnished with Evaluation Material, you will promptly upon the request
of the Company (i) deliver to the Company all documents and other tangible
media that contain or reflect information furnished by the Company or the
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Xx. Xxxxxxx X. XxXxxxxxx
Precision Castparts Corporation
November 25, 1997
Company Parties (including all copies, reproductions, digests, abstracts,
analyses and notes) and that are in your or your Representatives' possession or
control and (ii) destroy all documents and other tangible media that contain or
reflect the Evaluation Material (including all copies, reproductions, digests,
abstracts, analyses and notes) in your possession or control, or your
Representatives' possessions or control, in each instance without retaining a
copy of any Evaluation Material (whether returned or destroyed pursuant to
clauses (i) or (ii) above), and will destroy any and all related computer
entries of any such Evaluation Material, without retaining a copy thereof.
You further agree for a period of two years from the date hereof, that
you or your affiliates shall not solicit or hire any of the employees of the
Company who are employees of the Company during the period of your investigation
of the Company while they are still employed by the Company. Nothing in this
Agreement shall be construed as a grant by the Company of any right, title or
interest in the Evaluation Material except the right to use such Evaluation
Material for the purpose and to the extent set forth in this Agreement.
The term Evaluation Material shall not include information that you
demonstrate by clear and convincing evidence has (i) become or has been
generally available to the public other than as a result of disclosure by
you, your Representatives, or other improper means, (ii) was known by you, or
was acquired by you without any known breach of a confidentiality obligation
prior to its disclosure to you by the Company or its representatives, as
evidenced by documentation or other physical evidence predating the date of
this Agreement or (iii) has become available to you on a non-confidential
basis from a source other than the Company or its representatives, provided,
however, that such source was otherwise legally entitled to make such
disclosure to you and you notify the Company of such acquisition within ten
(10) days after the acquisition or, if the acquisition precedes disclosure by
the Company, promptly upon such disclosure.
You understand that a breach by you of this Agreement would cause
substantial and irreparable damage to the Company and that money would be an
inadequate remedy therefor. Accordingly, you acknowledge and agree that the
Company shall be entitled to any other available remedies to an injunction,
specific performance and/or equitable relief as a remedy for such breach.
Each party represents and warrants to the other that (a) it has
duly authorized, executed and delivered this Agreement, and (b) it has not
entered and will not enter into any agreement inconsistent herewith. This
Agreement (a) shall be governed by and construed in accordance with the laws
of New York State, (b) shall be binding upon such parties, successors,
assigns, legal representatives and (c) may not be amended, supplemented,
terminated, or any provision herein waived except by written agreement of
both parties hereto. The parties hereto agree that any dispute thereunder
shall be submitted exclusively to the federal or appropriate New York State
court having jurisdiction located in Schenectady County, New York, and the
parties consent to the venue and jurisdiction of such courts. This Agreement
represents the entire understanding between the parties with respect to the
subject matter hereof. No contemporaneous or prior written or oral agreement
shall be construed to alter, repeal or modify this Agreement and no consent
to or waiver of any breach of or default under any provision of this
Agreement shall be construed as a consent to or waiver of any other such
breach or default. This Agreement may be executed in two or more
counterparts, all of which together shall constitute a single instrument. In
making proof of this Agreement, it shall not be necessary to produce or
account for more than one fully executed counterpart.
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Xx. Xxxxxxx X. XxXxxxxxx
Precision Castparts Corporation
November 25, 1997
If you agree to the terms and conditions set forth in this letter
Agreement, please execute the duplicate copy of this letter in the space
provided below and return it to my attention.
Very truly yours,
THE NASSAU GROUP, INC.
/s/ J. Xxxxxxx Xxxxxxx
----------------------
Mr. J. Xxxxxxx Xxxxxxx
Managing Director
The undersigned agrees to be bound by the terms and conditions of this
letter.
Confirmed and agreed to as of this date:
PRECISION CASTPARTS CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------
Xx. Xxxxxxx X. XxXxxxxxx, 11/25/97
Chairman & CEO
Confirmed and accepted:
THE COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Chairman, President and
Chief Executive Officer
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