Exhibit (c)(3)
SYNTHETIC INDUSTRIES, INC.
000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
CONFIDENTIAL
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June 7, 1999
Xx. Xxxx Xxxxxx
Investcorp
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Xxxx:
This Agreement sets forth the terms and conditions pursuant to which Synthetic
Industries, Inc. (the "Company") will furnish to you certain information
concerning the business, financial performance and condition, operations and
liabilities of the Company in connection with your consideration of a possible
negotiated transaction (a "Transaction") involving the Company.
1. All information concerning the Company, whether prepared by the Company,
its advisors or otherwise and irrespective of the form of communication,
which has been or is furnished to you by or on behalf of the Company
(collectively, the "Evaluation Material") shall be treated and handled by
you as provided in this Agreement.
2. The Evaluation Material shall include, without limitation, all financial,
business, operating and other data, reports, interpretations, forecasts and
records that contain or reflect information concerning the Company which
the Company or its affiliates or the directors, partners, officers,
employees, agents or advisors, including attorneys, accountants,
consultants, bankers and financial advisors, (collectively,
"Representatives") of either the Company or its affiliates, furnish to you,
and all notes, analyses, compilations, studies, interpretations or other
documents prepared by you or your Representatives which contain, reflect or
are based, in whole or in part, on that information. The Evaluation
Material shall not include (i) information which is or becomes generally
available to the public other than as a result of a disclosure by you or
your Representatives or (ii) information that you can demonstrate was
either in your possession prior to its being furnished to you by or on
behalf of the Company or becomes available to you on a non-confidential
basis from a source other than the Company or its
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Representatives, provided that in either case referred to in this
subparagraph (ii) the source of the information is not bound by a
confidentiality agreement with, or any other contractual, legal or
fiduciary obligation of confidentiality to, the Company or any other party
with respect to the information.
3. The Evaluation Material shall be kept confidential by you and your
Representatives, shall be used by you and your Representatives solely for
the purpose of evaluating a Transaction and shall not be used in any way,
directly or indirectly, that is detrimental to the Company or its
affiliates. You and your Representatives shall not disclose any of the
Evaluation Material to any person in any manner whatsoever, provided that
you may disclose the Evaluation Material (a) to the extent that the Company
gives its prior written consent and (b) to your Representatives that need
to know information in the Evaluation Material for the sole purpose of
evaluating a Transaction, so long as such Representatives agree to keep
that information confidential and are provided with a copy of this
Agreement and agree to be bound by the terms and conditions hereof to the
same extent as if they were parties hereto, provided further, that without
the written consent of the Company, prospective financing sources shall not
be considered Representatives to whom Evaluation Material may be disclosed
in accordance with this paragraph. You shall be responsible for a breach
of this Agreement by your Representatives, and at your sole expense you
shall take all reasonable action, including court proceedings, to restrain
your Representatives from prohibited or unauthorized disclosure or use of
the Evaluation Material.
4. Without the prior written consent of the Company, you and your
Representatives shall not disclose to any other person (a) that the
Evaluation Material has been made available to you or them, (b) that
discussions or negotiations are taking place concerning a Transaction or
(c) any of the terms, conditions or other facts with respect to a
Transaction, including the status thereof, unless and until in the opinion
of your outside legal counsel the disclosure is required by law, and in
that event only after giving as much prior written notice to the Company as
is practicable under the circumstances. For purposes of this Agreement,
the term "person" shall be broadly interpreted to include the media and any
individual, corporation, partnership, group or other entity.
5. Without the prior consent of the Company, all communications by you or your
Representatives regarding a Transaction, requests by you or your
Representatives for additional information in that connection and
discussions or questions by you or your Representatives regarding
procedures with respect thereto shall be submitted or directed only to The
Beacon Group Capital Services, LLC ("Beacon") and not to the Company or its
affiliates or their respective Representatives other than Beacon. Unless
you have been specifically authorized in writing by the Company to do so,
you or your Representatives shall not contact any officer, director,
employee, agent, customer, vendor or affiliate of the Company regarding
this Agreement, the Evaluation Material or any Transaction.
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6. If you or your Representatives are requested or required, by deposition,
interrogatories, requests for information or documents in legal
proceedings, subpoena, civil investigative demand or other similar process,
to disclose any of the Evaluation Material, you shall provide the Company
with prompt written notice of the request or requirement so that the
Company may seek a protective order or other appropriate remedy or waive
compliance by you or your Representatives with the provisions of this
Agreement. In the absence of a protective order or other remedy or the
receipt of a waiver from the Company, if you or your Representatives are,
in the opinion of your outside legal counsel, legally compelled to disclose
any of the Evaluation Material to any tribunal or else be held in contempt
or suffer other censure or penalty, you or your Representatives may,
without liability hereunder, disclose to the tribunal only such portion of
the Evaluation Material that your legal counsel advises you is legally
required to be disclosed, provided that in that connection you shall use
your best efforts to preserve the contidentiality thereof, including
cooperating with the Company to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded that
portion of the Evaluation Material by the tribunal.
7. If you decide that you do not wish to participate in a Transaction, you
shall promptly inform the Company of that decision. In that case, or at
any time upon the request of the Company for any reason, you and your
Representatives shall promptly deliver to the Company all documents and
other written information which has been furnished to you or your
Representatives by or on behalf of the Company and all copies, extracts or
other reproductions, in whole or in part, thereof. In the event of such a
decision or request, the original and all copies of any of the Evaluation
Material prepared by you or your Representatives shall be destroyed.
Compliance by you and your Representatives with the preceding provisions
regarding the return or destruction of Evaluation Material shall, upon the
Company's request, be certified in writing to the Company by your
authorized officer supervising such return and destruction.
Notwithstanding the return or destruction of the Evaluation Material, you
and your Representatives shall continue to be bound by your confidentiality
and other obligations hereunder.
8. For a period of two years from the date hereof, (a) you, your affiliates
and your Representatives shall not, without obtaining the prior written
consent of the Company, employ or solicit to employ any of the current
officers or employees of the Company or its affiliates, and (b) none of
you, your affiliates or your Representatives shall knowingly divert or
attempt to divert any business, customer or supplier from the Company or
any of its affiliates. However, you shall not be prohibited from employing
any such person who contacts you on his or her own initiative without
solicitation directly or indirectly by you or an agent of you. Nothing
herein shall preclude generalized searches by you or your affiliates for
employees through the use of advertisement in the media (including trade
media) or through engagement of firms to conduct searches that are not
targeted or focused on the Company or its subsidiaries' employees.
9. For a period of three years from the date hereof, none of you, your
affiliates or your Representatives shall, directly or indirectly, (a)
propose to, or enter into any discussions,
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negotiations, arrangements or understanding with, the Company or any other
person concerning a transaction of any kind, including a Transaction,
between you or any of your affiliates and the Company or any of its
affiliates or any of their respective security holders or involving any of
the Company's securities or security holders unless the Company shall have
requested in writing that you make such a proposal, (b) agree to acquire,
acquire or assist, advise or encourage any other person, or otherwise act
in concert with any other person, in acquiring (i) ownership or control of
the Company, any of its affiliates or any of their businesses, assets or
liabilities or (ii) ownership or control, including beneficial ownership
("Beneficial Ownership") as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), of any of the capital
stock, debt securities, bank debt, including a participation interest
therein, options, warrants or other securities or indebtedness of the
Company or any of its affiliates unless the Company shall have given its
prior written consent to such action, (c) make or participate in any
"solicitation" of "proxies", as those terms are used in the proxy rules
under the 1934 Act, to vote, or seek to advise or influence any person with
respect to the voting of, any voting securities of the Company or any of
its affiliates or form, join or in any way participate in a "group", within
the meaning of Section 13(d) of the 1934 Act, with respect to any voting
securities of the Company or any of its affiliates, (d) seek or propose,
alone or in concert with others, to influence or control the Company's
management or policies, (e) disclose any intention, plan or arrangement
inconsistent with the foregoing, (f) advise, assist, encourage, act as a
financing source for or otherwise invest in any other person in connection
with any of the foregoing or (g) ask the Company or its Representatives to
amend or waive any provision of this paragraph. You shall promptly advise
the Company of any inquiry or proposal made to you with respect to any of
the foregoing.
10. None of the Company, its affiliates or their Representatives, including
Beacon, makes any representation or warranty, express or implied,
concerning the accuracy or completeness of the Evaluation Material or has
any liability to you or your Representatives relating to or resulting from
the use of the Evaluation Material by you or your Representatives. Only
those representations or warranties which are made in a final definitive
agreement regarding a Transaction, when, as and if executed and delivered
by the Company and you, and subject to the limitations and restrictions
contained therein, shall have any such effect.
11. Unless and until a final definitive agreement regarding a Transaction has
been executed and delivered by the Company and you, neither the Company nor
you shall be under any legal obligation of any kind with respect to a
Transaction by virtue of this Agreement except for the matters specifically
provided for herein. The Company reserves the right in its sole
discretion, to reject any proposal made by you, your affiliates or your
Representatives with regard to a Transaction or any other matter and to
terminate discussions and negotiations with you with respect to a
Transaction or any other matter at any time for any reason or no reason.
You understand that (a) the Company and its Representatives shall be free
to conduct any process for any Transaction as they in their sole discretion
shall determine, including negotiating with any of the prospective parties
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to such Transaction and entering into a definitive agreement without prior
notice to you or any other person, (b) any procedures relating to such
Transaction may be changed at any time without notice to you or any other
person, and (c) the Company may terminate the process at any time in its
sole discretion.
12. 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 other right, power or privilege hereunder.
13. Money damages are not an adequate remedy for a breach of this Agreement by
you or your Representatives, and the Company shall be entitled to equitable
relief, including injunction and specific performance, as a remedy for such
a breach. You waive any requirement for the securing or posting of a bond
in connection with such equitable relief and acknowledge that equitable
relief shall not be deemed to be the exclusive remedy for a breach of this
Agreement by you or your Representatives but shall be in addition to all
other remedies available at law or equity to the Company.
14. You hereby acknowledge that you are aware, and you agree to advise your
Representatives who are provided Evaluation Material or who are otherwise
informed as to the matters that are the subject of this Agreement, that any
person who receives from the Company or you, directly or indirectly, any
material, non-public information concerning the Company (including
material, non-public information regarding the matters contemplated by this
Agreement) is subject to applicable United States securities laws that
prohibit the purchase or sale by such person of the Company's securities or
from the communication by such person of any such material, non-public
information to any other person under circumstances in which it is
reasonably foreseeable that such other person will thereaftcr purchase or
sell the Company's securities.
15. If any provision of this Agreement is held to be illegal or contrary to
public policy or otherwise unenforceable, that provision shall be deemed
eliminated herefrom or modified to the extent necessary to make the
provision enforceable. Otherwise, the terms of this Agreement may be
amended, modified, superseded or waived only by a separate written
agreement executed by you and the Company that expressly states that it so
amends, modifies, supersedes or waives a term or terms of this Agreement.
16. You shall not assign any of your rights or delegate any of your duties
under this Agreement, including by operation of law, without the prior
written consent of the Company, and any purported assignment not consented
to shall be absolutely void and of no force and effect.
17. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to the conflict of law
provisions thereof.
18. This Agreement may be executed by the parties hereto in counterparts, both
of which, taken together, shall constitute one and the same Agreement.
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Please confirm your agreement to the foregoing by signing and returning the
accompanying copy of this Agreement, whereupon this Agreement shall become
binding on the parties hereto and on their respective successors and permitted
assignees.
Very truly yours,
SYNTHETIC INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxx
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Agreed as of the date
first written above:
By: /s/ Xxxx X. Xxxxxx
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