EXHIBIT 10.8
January 25, 1997
Xx. Xxxxx Xxxxxxx
IBP, Incorporated
XXX Xxxxxx
Xxxxxxx 00
Xxxxxx Xxxx, XX 00000
CONFIDENTIALITY AGREEMENT
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Dear Sirs:
In connection with your interest in a possible transaction (the "Transaction")
involving Foodbrands America, Inc. (the "Company"), you have requested that we
or our representatives furnish you or your representatives with certain
information relating to the Company or the Transaction. All such information
(irrespective of the form of communication) furnished (after the date hereof) by
us or out directors, officers, employees, affiliates, representatives
(including, without limitation, financial advisors, attorneys and accountants)
or agents (collectively, "our Representatives") to you or your directors,
officers, employees, affiliates, representatives (including, without limitation,
financial advisors, attorneys and accountants) or agents or your potential
sources of financing for the Transaction (collectively, "your Representatives")
and all analyses, compilations, forecasts, studies or other documents prepared
by you or your Representatives in connection with your or their review of, or
your interest in, the Transaction which contain or reflect any such information
provided by our Representatives is hereinafter referred to as the "Information".
The term Information will not, however, include information which (i) is or
becomes publicly available other than as a result of a disclosure by you or your
Representatives (ii) is or becomes available to you on a nonconfidential basis
from a source (other than us or our Representatives) which, to the best of your
knowledge after due inquiry, is not prohibited from disclosing such information
to you by a legal, contractual or fiduciary obligation to us or (iii) was
already in your possession prior to the date of this letter agreement. In no
event will the Information be made available to any person who is primarily
responsible for the pricing or marketing of any products in competition with the
Company.
Accordingly, you hereby agree that:
1. You and your Representatives (i) will keep the Information confidential and
will not (except as required by applicable law, regulation or legal
process, and only after compliance with paragraph 3 below), without our
prior written consent, disclose any Information in any manner whatsoever,
and (ii) will not use any Information other than in connection with the
Transaction; provided, however, that you may reveal the Information to your
Representatives (a) who need to know the Information for the purpose of
evaluating the Transaction, (b) who are informed by you of the confidential
nature of the Information and (c) who agree to act in accordance with the
terms of this letter Agreement. You will use your reasonable best efforts
to cause your
Representatives to observe the terms of this letter agreement, and you will
be responsible for any breach of this letter agreement by any of your
Representatives.
2. You and your Representatives will not (except as required by applicable
law, regulation or legal process, and only after compliance with paragraph
3 below), without our prior written consent, disclose to any person the
fact that the Information exists or has been made available, that you are
considering the Transaction involving the Company, or that discussions or
negotiations are taking or have taken place concerning the Transaction or
involving the Company or any term, condition or other fact relating to the
Transaction or involving the Company or any term, condition or other fact
relating to the Transaction or such discussions or negotiations,
including, without limitation, the status thereof.
3. In the event that you or any of your Representatives are requested pursuant
to, or required by, applicable law, regulation or legal process to disclose
any of the Information (or any of the facts described in paragraph 2 of
this letter agreement), you will notify us promptly so that we may seek a
protective order or other appropriate remedy or, in our sole discretion,
waive compliance with the terms of this letter agreement. In the event
that no such protective order or other remedy is obtained, or that the
Company waives compliance with the terms of this letter agreement, you will
furnish only that portion of the Information (or any of the facts described
in paragraph 2 of this letter agreement) which you are advised by counsel
is legally required and will exercise all reasonable efforts to obtain
reliable assurance that confidential treatment will be accorded the
Information.
4. If you determine not to proceed with the Transaction, you will promptly
inform our Representative, Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"), of that decision and, in that case, and at any time upon the
request of the Company or any of our Representatives, you will either (i)
promptly destroy all copies of the written Information in your or your
Representatives' possession and confirm such destruction to us in writing,
or (ii) promptly deliver to the Company at your own expense all copies of
the written Information in your or your Representatives' possession. For a
period of three years from the date of this letter agreement, any oral
Information will continue to be subject to the terms of this letter
agreement.
5. You acknowledge that neither we, nor Xxxxxx Xxxxxxx or its affiliates, nor
our other Representatives, nor any of our or their respective officers,
directors, employees, agents or controlling persons within the meaning of
Section 20 of the Securities Exchange Act of 1934, as amended, makes any
express or implied representation or warranty as to the accuracy or
completeness of the Information, and you agree that no such person will
have any liability relating to the Information or for any errors therein or
omissions therefrom; except for intentional misrepresentations or
omissions. You further agree that you are not entitled to rely on the
accuracy or completeness of the Information and that you will be entitled
to rely solely on such representations and warranties as may be included in
any definitive agreement with respect to the Transaction, subject to such
limitations and restrictions as may be contained therein.
6. You are aware, and you will advise your Representatives who are informed of
the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the purchase
or sale of securities by any person who
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has received material, non-public information from the issuer of such
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.
7. You agree that, for a period of eighteen months from the date of this
letter agreement, neither you nor any of your affiliates will, without the
prior written consent of the Company or its Board of Directors: (i)
acquire, offer to acquire, or agree to acquire, directly or indirectly, by
purchase or otherwise, any voting securities or direct or indirect rights
to acquire any voting securities of the Company or any subsidiary thereof
or any assets of the Company or any subsidiary or division thereof; (ii)
make, or in any way participate in, directly or indirectly, any
"solicitation" or "proxies" (as such terms are used in the rules of the
Securities Exchange Commission) to vote, or seek to advise or influence any
person or entity with respect to the voting of, any voting securities of
the Company; (iii) make any public announcement with respect to, or submit
a proposal for, or offer of (with or without conditions) any extraordinary
Transaction involving the Company or its securities or assets; (iv) form
joint or in any way participate in a "group" (as defined in Section 13
(d)(3) of the Securities Exchange Act of 1934, as amended) in connection
with any of the foregoing; or (v) request the Company or any of our
Representatives, directly or indirectly, to amend or waive any provision of
this paragraph.
8. You agree that, for a period of eighteen months from the date of this
letter agreement, you will not, directly or indirectly, solicit for
employment or hire any employee of the Company or any of its subsidiaries
with whom you have had contact or who became known to you in connection
with your consideration of the Transaction; provided, however, that the
foregoing provision will not prevent you from employing any such person who
contacts you on his or her own initiative without any direct or indirect
solicitation by or encouragement from you. Direct and indirect
solicitation does not include general advertisement.
9. You agree that all (1) communications regarding the Transaction, (ii)
requests for additional information, facility tours or management meetings,
and (iii) discussions or questions regarding procedures with respect to the
Transaction, will be first submitted or directed to Xxxxxx Xxxxxxx and not
to the Company. You acknowledge and agree that (a) we and our
Representatives are free to conduct the process leading up to a possible
Transaction as we and our Representatives, in our sole discretion,
determine (including, without limitation, by negotiating with any
prospective buyer and entering into a preliminary or definitive agreement
without prior notice to you or any other person), (b) we reserve the right,
in our sole discretion, to change the procedures relating to our
consideration of the Transaction at any time without prior notice to you or
any other person, to reject any and all proposals made by you or any of
your Representatives with regard to the Transaction, and to terminate
discussions and negotiations with you at any time and for any reason, and
(c) unless and until a written definitive agreement concerning the
Transaction has been executed, neither we nor any of our Representatives
will have any liability to you with respect to the Transaction, whether by
virtue of this letter agreement, any other written or oral expression with
respect to the Transaction or otherwise.
10. You acknowledge that remedies at law may be inadequate to protect us
against any
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actual or threatened breach of this letter agreement by you or by your
Representatives, and, without prejudice to any other rights and remedies
otherwise available to us, you agree to the granting or injunctive relief
in our favor without proof of actual damages. In the event of litigation
relating to this letter agreement, the unsuccessful party will pay all
reasonable legal fees and expenses incurred by the successful party in
connection with all such litigation.
11. You agree that no failure or delay by us in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any single
or partial exercise thereof preclude any other or further exercise thereof
or the exercise of any right, power or privilege hereunder.
12. This letter agreement will be governed by and construed in accordance with
the laws of the State of Oklahoma applicable to contracts between residents
of that State and executed in and to be performed in that State.
13. This letter agreement contains the entire agreement between you and us
concerning the confidentiality of the Information, and no modifications of
this letter agreement or waiver of the terms and conditions hereof will be
binding upon you or us, unless approved in writing by each of you and us.
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Please confirm your agreement with the foregoing by signing and returning to the
undersigned the duplicate copy of this letter enclosed herewith.
Very truly yours,
FOODBRANDS AMERICA, INC.
By its authorized representative
XXXXXX XXXXXXX & CO. INCORPORATED
By: ____________________________
Name: __________________________
Title: _________________________
Accepted and Agreed as of the date
first written above:
_____________________________
IBP. INCORPORATED
By: _________________________
Name: _______________________
Title: ______________________
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