[GRAPHIC OMITTED] XXXX
XXXX CORPORATION
0000 XXXX XXXXXX
XXXXXX, XXXX 00000
July 21, 2007
CONFIDENTIAL
Appaloosa Management L.P.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx
President
Re: Confidentiality Agreement
Dear Xx. Xxxxxx:
As you know, Xxxx Corporation ("Xxxx") and 40 of its domestic direct and
indirect subsidiaries (collectively, the "Debtors") filed voluntary petitions
for relief under chapter 11 of title 11 of the Bankruptcy Code, 11 U.S.C.
Sections 101, et seq. (the "Bankruptcy Code"), on March 3, 2006. Dana's chapter
11 cases (collectively, the "Chapter 11 Cases") are jointly administered under
the caption In re Xxxx, et al., Case No. 06-10534 (BRL), and are pending before
the Xxxxxxxxx Xxxxxx X. Xxxxxxx in the United States Bankruptcy Court for the
Southern District of New York (the "Bankruptcy Court"). Subject to the terms and
conditions of this letter agreement (this "Agreement"), the Debtors are willing
to furnish Appaloosa Management, L.P. ("Appaloosa") with certain Confidential
Information (as defined below) in connection with Xxxxxxxxx's consideration of a
possible investment in Xxxx as an alternative to the investment by Centerbridge
Capital Partners, L.P. previously publicly disclosed by Xxxx (the "Investment").
The Confidential Information shall be furnished or otherwise disclosed or
made known to you subject to the terms and conditions of this Agreement unless
otherwise agreed to in writing by the Debtors. This Agreement and your
obligations hereunder shall apply to your use of Confidential Information
regardless of whether it is provided or made known to you by the Debtors or
their Advisors or Representatives (as such terms are defined below). You will be
responsible for any use or disclosure of Confidential Information by your
Representatives or Advisors in contravention of this Agreement.
1. For purposes of this Agreement, the following terms shall have the
following indicated meanings:
"Advisors" shall include any counsel, consultants, accountants, experts,
auditors, examiners, financial advisors or other agents or professionals.
"Confidential Information" means any non-public information and any
information marked or designated by the Debtors and/or their Representatives or
Advisors as being "confidential," in each case concerning the Debtors or the
Chapter 11 Cases, including, without limitation, information concerning the
Debtors' assets, liabilities, business operations, business practices, business
plans, financial projections, financial and business analyses, intellectual
property, trade secrets and compilations and studies relating to the foregoing,
and other documents prepared by the Debtors or their Advisors or
Representatives, and information concerning any potential investor in or
purchaser or potential purchaser of any of the Debtors' assets, or any
confidential information provided as part of or in connection with any proposals
or negotiations of a possible investment transaction, which is furnished,
disclosed or made known to you or your Representatives or Advisors by the
Debtors or their Representatives or Advisors, whether intentionally or
unintentionally and in any manner, including in written form, orally or through
any electronic, facsimile or computer related means of communication.
Confidential Information shall include, without limitation: (a) any notes,
summaries, compilations, presentations, memoranda or similar written materials
disclosing or discussing Confidential Information; (b) any written Confidential
Information that is discussed or presented orally; and (c) any other
Confidential Information conveyed to you or your Representatives or Advisors
orally that the Debtors or their Representatives or Advisors advise you should
be treated as confidential. Notwithstanding anything to the contrary in this
Agreement, Confidential Information shall not include any information or
portions of information that: (a) is or becomes generally available to the
public, (b) is or becomes available to you on a non confidential basis, to the
extent that the source of such information was or is not actually known by you
to be prohibited from disclosing such information by contractual, legal or
fiduciary obligation to the Debtors, or (c) was in the possession of Appaloosa
on a non-confidential basis prior to its disclosure by the Debtors.
"or" shall not be construed as exclusive.
"person" shall be interpreted broadly to include the media and any
corporation, company, limited liability company, group, partnership, joint
venture, union, government agency, political subdivision or individual.
"Representatives" shall include directors, officers, employees, agents and
other representatives.
"you" and "your" refers to Appaloosa.
2. The Confidential Information shall be used consistent with the
following:
(a) All Confidential Information shall be used by you solely and
exclusively in connection with your consideration and evaluation of a possible
investment in the Debtors and shall be kept confidential by you, and shall not
be disclosed by you or your Representatives or Advisors to any other person or
entity without the Debtors' prior written consent.
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(b) If the Debtors determine, in their business judgment, that certain
Confidential Information poses a risk of competitive or other harm to the
Debtors, the Debtors may designate such information to be for (i) Investor's
eyes only or (ii) professional eyes only or (iii) particular professionals' eyes
only (collectively, "Restricted Information"). You agree that any Restricted
Information designated in this manner (whether by legend, watermark, restricted
access in the virtual dataroom or written confirmation) may be reviewed only by
employees of Investor or the specific Advisor or Advisors, as the case may be,
designated as having access to such Restricted Information and, in the case of
an Advisor or Advisors, who agree to this restriction and have acknowledged in a
writing in the form attached hereto as Exhibit 1 that they have reviewed this
Agreement and agreed to be bound by all of the terms hereof.
(c) Confidential Information may be disclosed by you to your
Representatives and Advisors who are working on the Chapter 11 Cases (subject in
all cases to the limitations in paragraph 2(b) above), provided that each such
Advisor receiving any Confidential Information pursuant to this paragraph 2(c)
has acknowledged in a writing in the form attached hereto as Exhibit 1 that he
has reviewed this Agreement and agreed to be bound by all of the terms hereof,
including without limitation, the obligations concerning the confidentiality of
all such Confidential Information and the proper use thereof. Appaloosa shall
provide promptly to the Debtors a true and correct copy of any acknowledgment
executed in accordance with paragraphs 2(b) and 2(c).
(d) Notwithstanding the foregoing, Appaloosa shall be permitted to
disclose Confidential Information to other holders of Xxxx Securities (as
defined below) or other parties in interest in the Chapter 11 Cases so long as
such holders or parties in interest have entered into a confidentiality
agreement acceptable to Xxxx.
3. Without the prior consent of the other party hereto, Appaloosa will
not enter into any agreement, arrangement or any other understanding, whether
written or oral, with any potential financing source or sources which by its
terms seeks to, or is intended to, limit, restrict, restrain, or otherwise
impair in any manner, directly or indirectly, the ability of such financing
source or sources to provide financing or other assistance to any other party in
any other transaction involving the Company.
4. Confidential Information may be disclosed by you or any of your
Representatives or Advisors if you are legally compelled (including, by
deposition, interrogatory, request for documents, subpoena, civil investigative
demand, court order or similar process) to do so; provided that, if legally
permissible, you provide the Debtors with reasonable prior notice of your
intention to disclose Confidential Information, which notice must be received by
the Debtors' counsel not fewer than 10 days prior to such disclosure (or if the
period for your own compliance is fewer than 10 days, then reasonably prompt
notice), so that the Debtors may seek a protective order or other appropriate
remedy and/or waive compliance with the terms of this Agreement with respect to
the proposed disclosure. If you timely give such notice and a protective order
or other remedy is not obtained by the time you are required to comply with such
disclosure requests, you may comply with such requests, provided that you use
reasonable efforts to disclose only such limited portion of the Confidential
Information as is covered by such request.
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5. Without limiting the generality of any provision of this Agreement, if
you determine in your sole discretion that it is necessary to disclose or
describe the substance of the Confidential Information in a motion, pleading or
other document filed with the Bankruptcy Court, or any other court,
administrative body or other tribunal (collectively, a "Filing"), prior to such
Filing, you shall move the Bankruptcy Court, or other court of competent
jurisdiction, to make such Filing under seal or through some comparable
protective mechanism. Further, if you determine that it is necessary to disclose
or describe the substance of Confidential Information through oral disclosure in
any court, administrative body or other tribunal (collectively, an "Oral
Disclosure"), prior to such Oral Disclosure, you shall: (a) to the extent
reasonably practicable, notify the Debtors thereof promptly upon such
determination; and (b) move the court, administrative body or other tribunal for
authority to make such disclosure in camera or in some other protective manner.
Except as provided in paragraphs 2, 3, 4 and 5 of this Agreement, Confidential
Information shall not be disclosed absent the express written consent of the
Debtors. If you or the Debtors seek a protective order or other remedy in
accordance with this Agreement, you agree that, to the extent legally
permissible, you will not publicly disclose Confidential Information until the
matter has been resolved by a court of competent jurisdiction.
6. You shall take proper care to assure that all Confidential Information
is maintained in a secure location and manner. Upon termination of any
definitive agreement between Xxxx and Appaloosa providing for the Investment or
the earlier termination of discussions between Appaloosa and Xxxx regarding such
investment, and at the written request of the Debtors, all tangible Confidential
Information in your possession, custody or control and furnished by the Debtors
or their Representatives or Advisors to you or your Representatives or Advisors
shall promptly be returned to the Debtors, without retention of any copy
thereof. If the Debtors make such a request, all other Confidential Information
that has been furnished by the Debtors or their Representatives or Advisors to
the extent incorporated into any analyses, compilations, studies, personal
notes, summaries or other documents in your possession, custody or control shall
be either destroyed or retained by you and kept subject to the terms of this
Agreement. If requested in writing by the Debtors, you shall provide a
certification as to the destruction of any materials in accordance with the
foregoing. Notwithstanding the return, destruction or retention of any
Confidential Information, you and your Representatives and Advisors will
continue to be bound by the obligations of confidentiality and other obligations
hereunder. Notwithstanding the foregoing, Appaloosa shall be authorized to
retain in the office of the General Counsel to Appaloosa one copy of any
Confidential Information furnished under this Agreement, along with any notes,
compilations, studies or analysis incorporating the Confidential Information;
provided that all of the terms of this Agreement shall apply to any Confidential
Information or other documents maintained pursuant to this sentence.
7. As of the date of this Agreement, except as previously disclosed by
you to the Debtors in writing, you represent that you do not beneficially own
any claims (as such term is defined under section 101 of chapter 11 of title 11
of the United States Code) with respect to any Debtor or any rights to acquire
such claims (collectively, "Claims") or any debt or equity securities of Xxxx or
any of its subsidiaries or any direct or indirect options, warrants or other
rights to acquire, or any security convertible into or exchangeable for, any
debt or equity securities of Xxxx or any of its subsidiaries (together with
Claims, "Xxxx Securities"). You agree that for a period (the "Standstill
Period") of the earliest to occur of the one year anniversary of the date of
this Agreement and the effective date of a chapter 11 plan of
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reorganization for the Debtors (the "Effective Date"), except within the terms
of a specific written request from a majority of the independent directors of
the Board of Directors of Xxxx or its designee, you will not, and none of your
Representatives or Advisors on your behalf will, directly or indirectly through
another party (a) file with the Bankrutpcy Court, or solicit acceptances with
respect to, any Plan of Reorganization in the Chapter 11 Cases unless and until
such time as the Debtors do not have the exclusive right to propose, or solicit
acceptances in respect of, a Plan of Reorganization in the Chapter 11 Cases or
(b) sell, acquire, or offer, propose or agree to sell or acquire, by purchase or
otherwise, beneficial ownership of any Xxxx Securities, provided, however, that
if no definitive agreement for an Investment has been executed between you and
Xxxx and discussions between you and Xxxx regarding an Investment have
terminated, subject to applicable securities laws, the March 28, 2006 letter
agreement regarding trading in Xxxx securities and any applicable orders of the
Bankruptcy Court, you may sell Xxxx Securities beneficially owned by you at any
time after a disclosure statement is filed by the Debtors in the Chapter 11
Cases.
8. Except as described in paragraph 6 hereof and except for the
Standstill Period described in paragraph 7, all obligations under this Agreement
shall terminate and be of no further force or effect on the date that is the
later of: (a) three months after the first to occur of (x) the Effective Date,
(y) the dismissal of the Chapter 11 Cases, or (z) the conversion of the Chapter
11 Cases to cases under chapter 7 of the Bankruptcy Code; or (b) twelve months
from the date of this Agreement.
9. It is agreed that no failure or delay by the Debtors 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 future exercise
thereof or the exercise of any other right, power or privilege hereunder.
Nothing contained herein shall restrict the use by the Debtors of Confidential
Information or limit or preclude the Debtors from raising objections to the
production or disclosure of information or documents.
10. Each party hereto agrees that unless and until a definitive agreement
between Xxxx and you with respect to the Investment has been executed and
delivered, neither you nor any Debtor will be under any legal obligation of any
kind whatsoever with respect to such a transaction by virtue of this Agreement
or any written or oral expression with respect to such a transaction by any of
our respective Representatives or Advisors except, in the case of this Agreement
or any other written agreement signed by the parties which purports to be
binding, for the matters specifically agreed to herein or therein. Although you
understand that the Debtors have endeavored to include in the Confidential
Information those materials and information which they believes to be reliable
and relevant for the purpose of your evaluation of Xxxx and its subsidiaries,
you understand and acknowledge that the Debtors are not making any
representation or warranty, express or implied, as to the accuracy or
completeness of the Confidential Information. You agree that neither the
Debtors, nor any of their respective Representatives or Advisors will have any
liability to you or any other person resulting from the use of the Confidential
Information by you or your Representatives and Advisors or any errors or
omissions therein, it being understood that only those particular
representations and warranties that are made to you by the Debtors in a
definitive purchase agreement, when and if it is executed, and subject to such
limitations and restrictions as may be specified in such definitive purchase
agreement, will have any legal effect.
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11. Unless agreed to otherwise by Appaloosa in its sole discretion or for
the purpose of negotiating the Investment, the Debtors shall not enter into any
confidentiality agreement with any third party or creditor that has proposed to
Xxxx to enter into discussions with Xxxx concerning an investment in Xxxx and
its subsidiaries as an alternative to the Investment unless such confidentiality
agreement contains terms that are not materially less favorable to Xxxx than the
terms of this Agreement.
12. You agree that money damages will not be a sufficient remedy for any
breach of this Agreement by you or your Representatives or Advisors.
Accordingly, in addition to any other remedies to which they may be entitled at
law or in equity, the Debtors shall be entitled to specific performance and
injunctive or other equitable relief as a remedy for any breach of this
Agreement (regardless of whether damages may or may not be readily quantifiable
and without posting a bond or other security).
13. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York without giving effect to the otherwise
applicable principles of law as to conflicts or choice of law of such state.
14. Each party hereto hereby irrevocably and unconditionally agrees that
the Bankruptcy Court shall have exclusive jurisdiction with respect to any
issues, actions, suits or proceedings arising out of or relating to this
Agreement during such time as any of the Debtors shall be subject to the
jurisdiction of the Bankruptcy Court.
15. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. The parties agree that
facsimile signatures shall be accepted as originals for all purposes under this
Agreement.
16. Except as otherwise provided herein, all notices and other
communications to the Debtors or you required or permitted under this Agreement
shall be in writing and shall become effective when delivered by facsimile
(confirmed by mail), overnight courier service, registered or certified mail
(postage prepaid) or hand delivery, addressed as follows or to such other
addresses as may be thereafter designated in writing by such party to the other
parties:
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You: Appaloosa Management L.P.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx
President
Telephone: 000-000-0000
000-000-0000
Facsimile:
With copies to: White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-2787
Attention: Xxxxxx Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Debtors: Xxxx Corporation
0000 Xxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to: Xxxxx Day
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement may not be
assigned by you without the prior written consent of the Debtors, which consent
shall be granted or not according to the Debtors' sole discretion. There are no
third-party beneficiaries of this Agreement.
18. This Agreement shall apply with respect to all Confidential Information
provided or made known to you on, prior to or after the date hereof.
19. This Agreement represents the entire agreement of the parties hereto with
respect to the subject matter hereof, and any amendment, supplement or
modification hereto, or any waiver of the rights and obligations hereunder, must
be in writing and signed on behalf of the parties hereto.
20. If any provision of this Agreement shall be determined to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions of the Agreement shall not be affected or impaired thereby.
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21. You hereby acknowledge that you and your Representatives and Advisors may
receive material non-public information in connection with your evaluation of an
investment and are aware that the federal and state securities laws may prohibit
any person who has material, non-public information about a company from
purchasing or selling securities of such a 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.
Please indicate your acceptance of this Agreement by signing below and returning
this Agreement to Xxxxxxx Xxxxxx at the notice address set forth in paragraph 16
above.
Sincerely,
XXXX CORPORATION, on its own behalf
and on behalf of all of the other Debtors
By:
----------------------------------------
Name:
Title:
Authorized Signatory for All of the Debtors
AGREED AND ACKNOWLEDGED:
APPALOOSA MANAGEMENT L.P.
By:
------------------------
Name:
------------------------
Title:
------------------------
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EXHIBIT 1
ACKNOWLEDGMENT AND AGREEMENT
Reference is hereby made to the Confidentiality Agreement dated July 21,
2007 (the "Confidentiality Agreement"), by and between Xxxx and 40 of its
domestic direct and indirect subsidiaries (collectively, the "Debtors") and
Appaloosa Management, L.P. ("Appaloosa"). The undersigned acknowledges receipt
of a true and correct copy of the Confidentiality Agreement and that it is an
Advisor (as such term is defined and used in the Confidentiality Agreement) to
Appaloosa. The undersigned further acknowledges and agrees to be bound by all of
the terms and conditions of the Confidentiality Agreement as if it were a party
thereto, and that the Debtors are express beneficiaries of this Acknowledgment
and Agreement and shall be entitled to rely upon and enforce this Acknowledgment
and Agreement in accordance with the terms of the Confidentiality Agreement.
Dated this ___ day of _____________, 200_.
[NAME OF ADVISOR]
By:
-----------------------------------
Name:
Title:
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