Exhibit (c)(2)
[LOGO]
October 30, 1996
Mr. X. Xxxx XxXxx
Vice President
Tyco International Ltd.
One Tyco Park
Exeter, NH 03833-1108
Dear Xxxx:
This letter is being provided to you in connection with your
consideration of a possible transaction with or involving the business of
ElectroStar, Inc. (together with its subsidiaries, the "COMPANY"). You have
requested access to certain information, properties and personnel of the
Company. As a condition to your being furnished such information, you agree
to treat confidentially any information (herein collectively referred to as
the "EVALUATION MATERIAL") concerning the Company, whether prepared by the
Company, its advisers (including, without limitation, Trivest, Inc. and its
affiliates (collectively, "TRIVEST") or otherwise, that is to be, or has
been, furnished to you or your representatives (which term, when applied to
the Company or yourselves shall include your or the Company's officers,
directors, employees, partners, joint ventures, agents, legal counsel,
accountants and financial or other advisers and, with respect to yourselves,
shall include current or prospective financing sources) by or on behalf of
the Company in accordance with the provisions of this agreement and to take
or refrain from taking certain other actions herein set forth.
The term "EVALUATION MATERIAL" includes (i) trade secrets concerning the
business and affairs of the Company, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current, and planned research
and development, current and planned manufacturing or distribution methods
and processes, customer lists, current and anticipated customer requirements,
price lists, market studies, business plans, computer software and programs
(including object code and source code), computer software and database
technologies, systems, structures and architectures (and related processes,
formulae, composition, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information), and any
other information, however documented, that is a trade secret within the
meaning of applicable law, and (ii) information concerning the business
and affairs of the Company (which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training techniques and materials), however documented, that has
been or may hereafter be provided or shown to you by the Company or its
representatives or is otherwise obtained from review of Company documents or
property or discussions with Company representatives by you or your
representatives, irrespective of the form of the communication, and also
includes all notes, analyses, compilations, studies, summaries, and other
material prepared by you or your representatives contained or based, in whole
or in part, on any information included in the foregoing, PROVIDED, HOWEVER,
that the term "EVALUATION MATERIAL" does not include any information that (x)
is already in your possession (other than information previously furnished to
you by the Company or any of its representatives), or (y) is or becomes
generally available to the public other than as a result of an unauthorized
disclosure by you or your representatives, or (z) becomes available to you on
a non-confidential basis from a source other than the Company or its
representatives, PROVIDED that such source is not known by you to be bound by
a confidentiality agreement or other obligation of secrecy to the Company or
another person.
Mr. X. Xxxx XxXxx
October 30, 1996
Page 2
You agree that the Evaluation Material will be used by you and your
representatives solely for the purpose of evaluating a possible transaction
between you and the Company, and will be kept confidential by you and your
representatives; PROVIDED, HOWEVER, that (i) any of such information may be
disclosed to your representatives who need to know such information for the
purpose of evaluating any such possible transaction (it being understood and
agreed that such representatives shall be informed by you of the confidential
nature of such information and shall be directed by you to treat such
information confidentially), and (ii) any disclosure of such information may
be made to which the Company or Trivest consents in writing.
In the event that you or your Representatives receive a request or
become legally compelled to disclose all or a part of the information
contained in the Evaluation Material (by oral questions, interrogatories,
requests for information or documents, subpoena civil investigative demand or
similar process or otherwise), (i) you agree to promptly notify the Company
of the existence, terms and circumstances surrounding such a request, so that
it may seek an appropriate protective order and/or waive your compliance with
the provisions of this agreement, and (ii) if disclosure of such information
is required in the written opinion of your counsel, you agree to exercise
reasonable efforts to obtain an order or other reliable assurance that
confidential treatment will be accorded to such of the disclosed material
which the Company so designates.
Except as permitted by the previous paragraph, without the prior written
consent of the Company, you will not, and will direct your representatives
not to, disclose to any person (including, without limitation, any officers,
employees or agents of the Company) either the fact that discussions or
negotiations are taking place concerning a possible transaction between the
Company and you or any of the terms, conditions or other facts with respect
to any such possible transaction, including the status thereof.
Without the prior written consent of the Company, you and your
representatives will not, for a period of two years after the date of this
letter agreement, solicit or cause to be solicited the employment of any
person who is now employed by the Company and with whom you had contact in
connection with the transactions that are the subject of this letter
agreement.
You agree that the Company shall be entitled to equitable relief,
including an injunction and specific performance in the event of the breach
of any of the provisions of this confidentiality agreement. Such remedies
shall not be deemed to be the exclusive remedies for a breach of this
confidentiality agreement by you or your Representatives, but shall be in
addition to all other remedies available at law or in equity.
Although you have been advised that the Company has endeavored to
include in the Evaluation Material information known to it which it believes
to be relevant for the purpose of your investigation, you acknowledge that
neither the Company nor any of its representatives (including, without
limitation, Trivest) have made or make any representation or warranty as to
the accuracy or completeness of the Evaluation Material, and neither the
Company nor its representatives (including, without limitation, Trivest)
shall have any liability to you, your representatives or any affiliate of
such persons resulting from the use of the Evaluation Material by you or such
persons. Only those representations and warranties that are made to a party
to a definitive agreement providing for a transaction as contemplated by this
agreement when, as and if it is executed, and subject to such limitations and
restrictions as may be specified in such agreement, shall have any legal
effect.
Mr. X. Xxxx XxXxx
October 30, 1996
Page 3
At any time upon the request of the Company, you and your
representatives will promptly redeliver to the Company all written Evaluation
Material and any other written material containing or reflecting any
information in the Evaluation Material (whether prepared by the Company, its
representatives or otherwise) and will not retain any copies, extracts or
other reproductions in whole or in part of such written material. Also, all
documents, memoranda, notes and other writings whatsoever prepared by you or
your representatives based on the information in the Evaluation Material will
be destroyed, and such destruction shall, upon request of the Company, be
certified in writing to the Company by an authorized officer supervising such
destruction.
It is further understood and agreed that no failure or delay by the
Company 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 further exercise thereof or the exercise of any right,
power or privilege hereunder.
You agree that unless and until a definitive agreement between the
Company and you with respect to any transaction referred to in the first
paragraph of this agreement has been executed and delivered, neither the
Company, its affiliates nor you will be under any legal obligation of any
kind whatsoever with respect to such a transaction, except for the matters
specifically agreed to in this agreement. The agreements set forth in this
agreement may be modified or waived only by a separate writing signed by the
Company and by you expressly so modifying or waiving such agreements. It is
further acknowledged and agreed that each of the parties hereto reserves the
right to terminate discussions and negotiations at any time.
This agreement shall be governed by and construed in accordance with the
internal laws of the State of Florida.
You obligations under this agreement shall terminate on the third
anniversary of the date hereof.
You acknowledge that you are aware, and that you will advise your
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 concerning
the matters which are the subject of this agreement from purchasing or
selling securities of such issuer or from communicating such information to
any other person while such information is non-public under circumstances in
which it is reasonably forseeable that such person is likely to purchase or
sell such securities.
Mr. X. Xxxx XxXxx
October 30, 1996
Page 4
If you are in agreement with the foregoing, please so indicate by
countersigning the enclosed copy of this letter and returning it to the
attention of the undersigned, whereupon this letter will constitute our
agreement with respect to the matters set forth herein.
Very truly yours,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
President and Chief Executive Officer
ACCEPTED AND AGREED TO THIS
___ DAY OF NOVEMBER 1996:
TYCO INTERNATIONAL LTD.
By: /s/ X. Xxxx XxXxx
________________________
X. Xxxx XxXxx
____________________________
(Print Name)
Vice President
____________________________
(Title)
