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Exhibit (c)(3)
PERSONAL AND CONFIDENTIAL
XXXXXX INTERNATIONAL, INC. CONFIDENTIALITY AGREEMENT
Dear Xx. Xxxxxxxx:
In connection with our consideration of a possible negotiated transaction
between Xxxxxx International, Inc. ("Xxxxxx") and Xxxxxxx Chemical Company, (a
"Transaction"), each of us, and our respective advisors and agents is prepared
to make available to the other certain information which is non-public,
confidential or proprietary in nature.
By execution of this letter agreement (the "Agreement"), we agree to treat
confidentially all such information whether written or oral (the "Evaluation
Material"), and to observe the terms and conditions set forth herein. We
further agree to be responsible for any breach of this Agreement by any of our
directors, officers, employees, partners, affiliates, agents, advisors or
representatives (hereinafter, "Representatives") having access to any of the
Evaluation Material.
For the purposes of this Agreement, Evaluation Material shall include, without
limitation, all information, data, reports, analyses, compilations, studies,
interpretations, projections, forecasts, records, and other materials (whether
prepared by Xxxxxx or Xxxxxxx as the case may be, or otherwise and in whatever
form maintained, whether documentary, computerized or otherwise), regardless of
the form of communications, that contain or otherwise reflect information
concerning Xxxxxx or Xxxxxxx as the case may be, that we or our Representatives
may be provided by or on behalf of Xxxxxx or Eastman, as the case may be, in
the course of our evaluation of a possible Transaction. The term "Evaluation
Material" shall also include all information, data, reports, analyses,
computations, studies, interpretations, projections, forecasts, records, notes,
memoranda, summaries or other materials in whatever form maintained, whether
documentary, computerized or otherwise, whether prepared by us or our
Representatives or others, that contain or otherwise reflect or are based upon,
in whole or in part, any such Evaluation Material or that reflect our review
of, or interest in, all or any portion of Xxxxxx or Xxxxxxx, as the case may
be, (the "Notes").
This Agreement shall be inoperative as to those particular portions of the
Evaluation Material that (i) have been generally available to the public, or
become generally available to the public other than as result of a disclosure
by you or any of your Representatives, (ii) were available to us on a
non-confidential basis prior to the disclosure of such Evaluation Material to
us pursuant to this Agreement, provided that
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the source of such information was not known by us or any of our
Representatives, after reasonable investigation, to be bound by a
confidentiality agreement with other contractual, legal or fiduciary obligation
of confidentiality to Xxxxxx or Xxxxxxx, as the case may be, or any of its
affiliates with respect to such material or (iii) become available to us on a
non-confidential basis from a source other than Xxxxxx or Xxxxxxx as the case
may be, or its agents, advisors or Representatives provided that the source of
such information was not known by us or any of our Representatives, after
reasonable investigation, to be bound by a confidentiality agreement with or
other contractual, legal or fiduciary obligation of confidentiality to Xxxxxx
or Xxxxxxx as the case may be, or any of its affiliates with respect to such
material.
We agree that we will not use the Evaluation Material for any purpose other
than determining whether we wish to enter into a Transaction. We agree not to
disclose or allow disclosure to others of any Evaluation Material; provided
that, subject to the second paragraph of this agreement, we may disclose
Evaluation Material to our employees or Representatives to the extent necessary
to permit such employees or Representatives to assist us in making the
determination referred to in the prior sentence. We shall take all reasonable
measures (including but not limited to court proceedings), at each of our sole
expense, to restrain our Representatives from prohibited or unauthorized
disclosure or using the Evaluation Material in any way directly or indirectly
detrimental to the other party. In particular we agree that for a period of 24
months from the date of the signing of this Agreement we and our affiliates
will not knowingly, as a result of knowledge or information obtained from the
Evaluation Material in connection with a possible Transaction: (i) divert or
attempt to divert any business or customer of the other party or any of its
affiliates; nor (ii) employ or attempt to employ or divert an employee of the
other party. It is understood the preceding sentence is not intended to apply
to activities undertaken by either of us in the ordinary course of business
without relying on the Evaluation Material.
In addition, we agree that we will not make any disclosure (i) that we are
having or have had discussions, or that we have received Evaluation Material
from the other party concerning a Transaction, (ii) that we are considering a
possible Transaction or (iii) concerning any discussions related to a possible
Transaction, including the status thereof, any termination thereof, any
decision on our part to no longer consider any such Transaction or any of the
terms, conditions or other facts with respect thereto; provided that such
disclosure must be made by us in order that we not commit a violation of law
and, prior to such disclosure, each of us promptly advises and consults the
other party and its legal counsel concerning the information Xxxxxx or Xxxxxxx,
as the case may be, proposes to disclose. The term "person" as used in this
letter shall be broadly interpreted to include, without limitation, the media
and any corporation, partnership, group, individual or other entity.
Although we have endeavored to include in the Evaluation Material information
known to us which we believe to be relevant for the purpose of this
investigation, we
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understand and agree that none of Xxxxxx or Xxxxxxx as the case may be, or any
of our Representatives or affiliates, agents, advisors or representatives (i)
has made or makes any representation or warranty, expressed or implied, as to
the accuracy or completeness of the Evaluation Material or (ii) shall have any
liability whatsoever to the other party or its Representatives relating to or
resulting from the use of the Evaluation material or any errors therein or
omissions therefrom.
Without limiting the generality of the immediately preceding paragraph, the
Evaluation Material may include certain statements, estimates and projections
provided by a party with respect to the anticipated future performance of the
business. Such statements, estimates and projections reflect various
assumptions made by such party concerning anticipated results, which
assumptions may or may not prove to be correct. No representations are made as
to the accuracy of such assumptions, statements, estimates or projections,
including the budget. The only information that will have any legal effect will
be specifically represented in a definitive purchase or merger agreement, in no
event will such definitive agreement contain any representation as to the
projections.
In the event that either of us or anyone to whom we transmit any Evaluation
Material in accordance with this Agreement is requested or required (by
deposition, interrogatories, requests for information or documents in legal
proceedings, subpoenas, civil investigative demand or similar process), in
connection with any proceeding, to disclose any Evaluation Material, we will
give the other party prompt written notice of such request or requirement so
that the other party may seek an appropriate protective order or other remedy
and/or waive compliance with the provisions of this Agreement, and we will
cooperate with the other party to obtain such protective order. In the event
that such protective order or other remedy is not obtained or Xxxxxx or as the
case may be, waives compliance with the relevant provisions of this Agreement,
we (or such other persons to whom such request is directed) will furnish only
that portion of the Evaluation Material which, in the opinion of our counsel,
is legally required to be disclosed. It is further agreed that, if in the
absence of a protective order we (or such other persons to whom such request is
directed) are nonetheless legally compelled to disclose such information, we
may make such disclosure without liability hereunder, provided that we give the
other party notice of the information to be disclosed as far in advance of its
disclosure as is practicable and, upon the other party's request, use our
reasonable efforts to obtain assurances that confidential treatment will be
accorded to such information and, provided further, that such disclosure was
not caused by and did not result from a previous disclosure by Xxxxxx or
Xxxxxxx as the case may be, or any of its Representatives not permitted
hereunder.
If we decide that we do not wish to proceed with a Transaction, we will
promptly notify the other party of that decision. In that case, or if either of
us shall elect at any time to terminate further access by the other party to
the Evaluation Material for any reason, we will promptly redeliver to the other
party or destroy all copies of the Evaluation Material in the possession of us
or our affiliates or our Representatives and will destroy all Notes.
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Notwithstanding, the return or destruction of Evaluation Material and Notes, we
and our Representatives will continue to be bound by our obligations of
confidentiality and other obligations hereunder.
We understand that (i) each of us shall conduct this process for a possible
Transaction as each of us in our sole discretion shall determine (including,
without limitation, negotiating with any prospective third party and entering
into definitive agreements without prior notice to the other party or any other
person), (ii) any procedures relating to such Transaction may be changed at any
time without notice to the other party or any other person, (iii) each of us
shall have the right to reject or accept any potential buyer, proposal or
offer, for any reason whatsoever, in our sole discretion, and (iv) neither
Xxxxxx nor Xxxxxxx as the case may be, nor any of its Representatives shall
have any claims whatsoever against the other party or its Representatives or
any of their respective directors, officers, stockholders, owners, affiliates
or agents arising out of our relating to the Transaction (other than under this
agreement and other than those against the parties to a definitive agreement
with Xxxxxx or Xxxxxxx as the case may be, in accordance with the terms
thereof).
We agree that unless and until a definitive agreement between us with respect
to any Transaction has been executed and delivered, neither of us will be under
any legal obligation of any kind whatsoever with respect to such Transaction.
We agree that money damages would not be sufficient remedy for any breach of
this Agreement by either of us or our Representatives, that in addition to all
other remedies we shall be entitled to specific performance and injunctive or
other equitable relief as a remedy for any such breach, and we further agree to
waive, and to use our best efforts to cause our Representatives to waive, any
requirement for the securing or posting of any bond in connection with such
remedy. In the event of litigation relating to this letter agreement, if a
court of competent jurisdiction determines that Xxxxxx or Xxxxxxx as the case
may be, or any of its Representatives has breached this letter agreement, such
party shall be liable and pay to the other party the reasonable legal fees
incurred by the other party in connection with such litigation, including any
appeal therefrom.
Each of us reserves the right to assign its rights, powers and privileges under
this letter agreement (including, without limitation, the right to enforce the
terms of this letter agreement) to any person who enters into a Transaction
with such party.
Each of us hereby acknowledges that we are aware and that we have advised such
of our employees or Representatives who are informed as to the matters which
are the subject of this agreement, that the 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.
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In addition, each of us, upon the receipt of proprietary, non-public,
confidential information from the other party, hereby agrees that we will not
propose to the other company or any other person any transaction between us and
the other company and/or its security holders or involving any of its
securities or security holders unless the other company has requested in
writing that we make such a proposal, and that we will not acquire, or assist,
advise or encourage any other persons in acquiring, directly or indirectly,
control of the other company or any of the other company's securities,
businesses or assets for a period of two years from the date of this Agreement
unless the other company shall have consented in advance in writing to such
acquisition.
All modifications of, waivers of and amendments of this Agreement or any part
hereof must be in writing signed on behalf of each of us. We acknowledge that
the other party is intended to be benefited by this Agreement and that each of
us shall be entitled, either alone or together with our representatives or
advisors, to enforce this Agreement and to obtain for itself the benefit of any
remedies that may be available for the breach hereof.
It is further understood and agreed that no failure to delay by either of us in
exercising any right, power or privilege under this Agreement shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege hereunder.
We hereby irrevocably and unconditionally submit to the exclusive jurisdiction
of any State or Federal court sitting in New York over any suit, action or
proceeding arising out of or relating to this letter. We hereby agree that
service of any process, summons, notice or document by U.S. registered mail
addressed to us shall be effective service of process for any action, suit or
proceeding brought against us in any such court. We hereby irrevocably and
unconditionally waive any objection to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. We agree that a final judgment in any such suit, action or
proceeding brought in any such court shall be conclusive and binding upon us
and may be enforced in any other courts to whose jurisdiction we are or may be
subject, by suit upon such judgment.
In the event that any provision or portion of this letter is determined to be
invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this letter shall be unaffected thereby and shall remain in full
force and effect to the fullest extent permitted by applicable law.
This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of New York. The obligation to hold the evaluation material
confidential shall expire two years from the date of this agreement.
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We have indicated our agreement with the foregoing by signing, dating, and
exchanging a copy of this Agreement, which constitutes our agreement with
respect to the matters set forth herein.
XXXXXX INTERNATIONAL, INC. XXXXXXX CHEMICAL COMPANY
/s/ XXXX X. X'XXXXXXX /s/ XXXXX X. XXXXX
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(signature) (signature)
Chairman and CFO V.P. and General Manager (Inks & Resins
Business)
November 3, 1998 October 30, 1998
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(Date) (Date)
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