Exhibit 99.3
CONFIDENTIALITY AGREEMENT
This Agreement (this "AGREEMENT") is made and entered into as of October
24, 2007, by and between Xxxxxx Xxxx Corporation (the "COMPANY"), and each of
the entities and natural persons listed on SCHEDULE A hereto (such entities and
natural persons and any Ramius Nominee that executes a joinder to this
Agreement, collectively, the "RAMIUS GROUP") (each of the Company and the Ramius
Group, a "PARTY" to this Agreement, and collectively, the "Parties").
WITNESSETH:
WHEREAS, in connection with the execution and performance of a
Settlement Agreement between the Parties and certain other parties affiliated
with the Ramius Group, dated October 24, 2007 (the "SETTLEMENT AGREEMENT"),
regarding the nomination of certain persons to the Board of Directors of the
Company (the "BOARD") and the Ramius Group's forbearance of certain activities
during the Standstill Period (as defined in the Settlement Agreement), the
Company expects to provide or otherwise make available to either or both of
Xxxxxxx Xxxxx and Xxxxxx Xxxxxxxxxx (the "RAMIUS NOMINEES") certain information,
including information made available to either or both Ramius Nominees pursuant
to Section 1 of this Agreement, developed by and/or concerning the Company that
is non-public, confidential or proprietary in nature, including business and
financial information concerning the Company and/or its operations (such
information collectively, "CONFIDENTIAL INFORMATION");
NOW THEREFORE, in consideration of the agreements, covenants and
premises set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto
hereby agree as follows:
1. The Company hereby agrees that prior to the 2007 Annual Meeting
of Stockholders of the Company (the "2007 ANNUAL MEETING"), the Company will not
take any action that the Board considers material without first advising a
Ramius Nominee regarding such action. The Ramius Nominees shall use the
Confidential Information solely for the purpose of evaluating the Company and
actions proposed to be taken by the Company, in connection with their respective
preparations to serve as members of the Board if elected at the 2007 Annual
Meeting.
2. All Confidential Information furnished by the Company to a Ramius
Party will be kept confidential by all Ramius Parties and shall not, without the
prior written consent of the Company, be disclosed by any Ramius Party in any
manner whatsoever, in whole or in part, and shall not be used by any Ramius
Party other than as necessary for the purpose of evaluating the Company and
actions proposed to be taken by the Company and the Ramius Group's investment in
the Company. Moreover, each Ramius Party shall reveal the Confidential
Information only to other Ramius Parties that need to know the Confidential
Information for such purpose, who are informed by the revealing Ramius Party of
the confidential nature of the Confidential Information and who agree to be
bound by the terms and conditions of this Agreement. No Ramius Party shall,
without the prior written consent of the Company, disclose any of the
Confidential Information to its shareholders, members, other security holders or
affiliates, or any of them, that are not Ramius Parties. Each member of the
Ramius Group shall cause its Ramius Affiliates to comply with this Agreement.
Each member of the Ramius Group shall be jointly and severally responsible for
any breach of this Agreement by any Ramius Party. "RAMIUS AFFILIATES" means the
directors, officers, managers, agents, representatives (including attorneys,
accountants and financial advisers) and employees of the Company of any member
of the Ramius Group; and "RAMIUS PARTIES" means the Ramius Affiliates and the
members of the Ramius Group.
3. No Ramius Party shall, without the prior written consent of the
Company, disclose to any person the fact that the Confidential Information has
been made available by the Company to a Ramius Party. The term "person" as used
in this Agreement shall be broadly interpreted to include, without limitation,
the media and any individual, group, corporation, partnership, limited liability
company or other entity, including any government or agency thereof.
4. All Confidential Information received by a Ramius Party hereunder
will be returned to the Company promptly upon the request of the Company,
subject to any documentation retention policies to which such Ramius Party is
subject as required by law or regulatory authority; PROVIDED, however, that any
analyses, compilations, studies or other documents prepared by a Ramius Party
based upon or relating to or otherwise constituting Confidential Information
shall be deemed to be Confidential Information and will be, at the option of the
Company, either destroyed or held by such Ramius Party and kept confidential and
subject to the terms of this Agreement, subject to any documentation retention
policies to which such Ramius Party is subject as required by law or regulatory
authority.
5. No Ramius Party will photocopy, reproduce or distribute to others
any Confidential Information received at any time, except for distribution to
persons entitled to receive Confidential Information hereunder for the purposes
contemplated hereby or with the prior written consent of the Company.
6. Notwithstanding anything to the contrary contained herein:
"Confidential Information" shall not include information which: (a) is at the
time of disclosure or thereafter becomes generally available to the public other
than as a result of a disclosure by a Ramius Party; (b) was, prior to disclosure
by the Company, already in a Ramius Party's possession, provided that the source
of such information was, to such Ramius Party's knowledge after reasonable
inquiry, not bound by a confidentiality agreement with or other contractual,
legal or fiduciary obligation of confidentiality to the Company or a Company
Affiliate; (c) becomes available to a Ramius Party on a nonconfidential basis
from a source (other than the Company or a Company Affiliate) that is, to such
Ramius Party's knowledge after reasonable inquiry, not bound by a
confidentiality agreement with or other contractual, legal or fiduciary
obligation of confidentiality to the Company or a Company Affiliate, and is not,
to such Ramius Party's knowledge after reasonable inquiry, under an obligation
to the Company or a Company Affiliate not to transmit the information to such
Ramius Party; or (d) was independently developed by a Ramius Party or a Ramius
Affiliate without reference to or use of the Confidential Information. "COMPANY
AFFILIATES" means the directors, officers, agents, representatives (including
attorneys, accountants and financial advisers) and employees of the Company.
7. Each member of the Ramius Group acknowledges that neither the
Company nor any Company Affiliate makes any representation or warranty as to the
accuracy or completeness of the Confidential Information furnished by it to any
Ramius Party. Neither the Company nor any Company Affiliate shall have any
liability to any Ramius Party hereunder resulting from the use of the
Confidential Information by a Ramius Party.
8. In the event that any Ramius Party or any person to whom any
Ramius Party transmits Confidential Information becomes legally required to
disclose any Confidential Information furnished to it, the Ramius Group will, to
the extent legally permissible, provide the Company with prompt notice thereof
so that the Company may, if available, promptly seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement. In the event that such protective order or other remedy is not
obtained, or the Company waives compliance with the provisions of this
Agreement, the Ramius Party (or the person to whom the Ramius Party transmitted
such Confidential Information) may, without liability hereunder, disclose only
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that portion of the Confidential Information furnished hereunder which, based
upon the advice of counsel of such Ramius Party, the disclosure of which is
legally required and will exercise its reasonable best efforts to obtain a
protective order or other reliable assurance that confidential treatment will be
accorded the Confidential Information.
9. Each member of the Ramius Group acknowledges and agrees that
irreparable injury to the Company would occur in the event any Ramius Party
obligations under this Agreement were not performed in accordance with the
specific terms of this Agreement or a Ramius Party otherwise breached this
Agreement and that such injury would not be adequately compensable in damages.
It is accordingly agreed by each member of the Ramius Group that the Company
shall be entitled to specific enforcement of (without the necessity of posting a
bond or other security or proving actual damages), and injunctive relief to
prevent any violation of (without the necessity of posting a bond or other
security or proving actual damages), the terms of this Agreement by any Ramius
Party and that no Ramius Party will take any action, directly or indirectly, in
opposition to the Company seeking such relief on the grounds that any other
remedy or relief is available at law or in equity. This Section 9 shall not in
any way affect a Party's right to exercise its rights at law. Each member of the
Ramius Group, jointly and severally, shall reimburse, indemnify and hold
harmless the Company and the Company Affiliates against any and all costs and
liabilities arising from the breach of any provision of this Agreement by any
Ramius Party.
10. The terms, conditions and provisions of this Agreement shall
apply only with respect to Confidential Information received by a Ramius Party
prior to the earlier of (i) the election of the Ramius Nominees to the Board or
(ii) the conclusion of the Company's 2007 Annual Meeting.
11. Each member of the Ramius Group hereby irrevocably appoints RCG
Starboard Advisors, LLC as such member's attorney-in-fact and representative
(the "RAMIUS REPRESENTATIVE"), in such member's place and stead, to do any and
all things and to execute any and all agreements, instruments and other
documents and any amendments, modifications and waivers thereto and hereto and
to give and receive any and all notices or instructions in connection with this
Agreement and the transactions contemplated hereby. The Company shall be
entitled to rely, as being binding on each member of the Ramius Group, upon any
action taken by the Ramius Representative or upon any document, notice,
instruction or other writing given or executed by the Ramius Representative.
Each member of the Ramius Group acknowledges and agrees that each agreement,
covenant or other obligation of the Ramius Group hereunder shall be binding on
such member of the Ramius Group.
12. Each member of the Ramius Group acknowledges and agrees that it
is aware of the restrictions imposed by the United States securities laws on the
purchase or sale of securities by any person who has received material nonpublic
information from the issuer of securities, and on the communication of such
information to any other person when it is reasonably foreseeable that such
other person is likely to purchase or sell such securities in reliance upon such
information.
13. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to its conflict of law
rules.
14. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof and supersedes all prior
agreements understandings, both written and oral, among the Parties with respect
to the subject matter hereof. No modifications of this Agreement can be made
except in writing signed by an authorized representative of each of the Company
and each member of the Ramius Group.
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15. If at any time subsequent to the date hereof, any provision of
this Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon the legality or enforceability of any other provision of this Agreement.
16. This Agreement and any amendments hereto may be executed and
delivered in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when counterparts have been signed by each
party hereto and delivered to the other parties hereto, it being understood that
all parties need not sign the same counterpart. In the event that any signature
to this Agreement or any amendment hereto is delivered by facsimile transmission
or by e-mail delivery of a ".pdf" format data file, such signature shall create
a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or
".pdf" signature page were an original thereof. At the request of any party each
other party shall promptly re-execute an original form of this Agreement or any
amendment hereto and deliver the same to the other party. No party hereto shall
raise the use of a facsimile machine or e-mail delivery of a ".pdf" format data
file to deliver a signature to this Agreement or any amendment hereto or the
fact that such signature was transmitted or communicated through the use of a
facsimile machine or e-mail delivery of a ".pdf" format data file as a defense
to the formation or enforceability of a contract, and each party hereto forever
waives any such defense.This Agreement embodies the entire agreement between the
Parties and supersedes any and all prior or contemporaneous oral or written
agreements, arrangements and understandings concerning the matters provided for
herein.
17. Any notices, consents, determinations, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) Business Day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company:
Xxxxxx Xxxx Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: 000-000-0000
With a copy to:
Xxxxxx Xxxxxx Xxxxxxxx LLP
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx, Esq. and Xxxx X. Xxxx, Esq.
Facsimile: 312-902-1061
If to the Ramius Group or any member of the Ramius Group:
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Ramius Capital Group, L.L.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
18. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns. No Party shall assign
this Agreement or any rights or obligations hereunder without, with respect to
any member of the Ramius Group, the prior written consent of the Company, and
with respect to the Company, the prior written consent of the Ramius
Representative.
19. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party. Unless the context
otherwise requires, (a) all references to Sections or Schedules are to Sections
or Schedules contained in or attached to this Agreement, (b) words in the
singular or plural include the singular and plural and pronouns stated in either
the masculine, the feminine or neuter gender shall include the masculine,
feminine and neuter, and (c) the use of the word "including" in this Agreement
shall be by way of example rather than limitation.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXX XXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer,
President, Secretary
PARCHE, LLC RCG STARBOARD ADVISORS, LLC
By: RCG Starboard Advisors, LLC, By: Ramius Capital Group, L.L.C.,
its managing member its sole member
STARBOARD VALUE AND OPPORTUNITY MASTER RAMIUS CAPITAL GROUP, L.L.C.
FUND LTD. By: C4S & Co., L.L.C.,
By: RCG Starboard Advisors, LLC, as managing member
its investment manager
C4S & CO., L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
/s/ Xxxxx X. Xxxx
-------------------------------------
XXXXX X. XXXX
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
XXXXXXX X. XXXXX
Individually and as attorney-in-fact
for Xxxxxx Xxxxxxxxxx
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By: Starboard Value and Opportunity Master Fund Ltd.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By: Parche, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By: RCG Enterprise, Ltd
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By: RCG Starboard Advisors, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By: Ramius Capital Group, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
By: C4S & CO., L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
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SCHEDULE A
THE RAMIUS GROUP
Parche, LLC
Starboard Value and
Opportunity Master Fund
Ltd.
RGC Starboard Advisors,
LLC
Ramius Capital Group,
L.L.C.
C4S & CO., LLC
RCG Enterprise, Ltd
Xxxxxx Xxxxxxxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxx
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