Mr. Pat Teirney
April 4, 2000
Page 1
PRIMARK
April 4, 2000
PERSONAL AND CONFIDENTIAL
Mr. Pat Tierney
The Thomson Corporation
One Metro Center
One Station Place
Stamford, CT 06902
Dear Pat:
In connection with your consideration of a possible transaction (the
"Transaction") with Primark Corporation (together with its subsidiaries and
affiliates hereinafter referred to as "Primark"), you have requested certain
information concerning Primark. Primark is prepared, in its sole discretion, to
make available to you certain information which is non-public, confidential or
proprietary in nature concerning the business, financial condition, operations
and assets of Primark for your use in connection with your consideration of the
Transaction. You agree that this agreement shall bind you and your affiliates
and any Director, Officer, or employee thereof. All references to "you" and
"your" herein shall include all such entities and individuals.
As a condition to and in consideration of your being furnished such
information, you agree to treat any information concerning Primark (whether
written, electronically recorded or oral, and whether prepared by Primark, its
advisors or otherwise) which is furnished to you by or on behalf of Primark
(hereinafter collectively referred to as the "Evaluation Material"), including
any materials prepared by you or your representatives which reflect this
information, in accordance with the provisions of this letter and to take or
abstain from taking certain other actions described in this letter. The term
"Evaluation Material" does not include information which (i) is already in your
possession, provided that such information is not known by you to be subject to
another confidentiality agreement with or other obligation of secrecy to
Primark; (ii) becomes available to you on a non-confidential basis from a source
other than Primark or its advisors, provided that such source is not known by
you to be bound by a confidentiality agreement with or other obligation of
secrecy to Primark; or (iii) which is now or hereafter becomes generally
available except through your fault; or (iv) is independently developed by you
without reference to the Evaluation Material.
Mr. Pat Teirney
April 4, 2000
Page 2
You hereby agree that the Evaluation Material will be used SOLELY for
the purpose of evaluating the Transaction, and that such information will be
kept confidential by you and may be disclosed only to those of your directors,
officers and employees, and representatives of your advisors and financers who
need to know such information for the purpose of evaluating any such Transaction
between Primark and you (it being agreed that such directors, officers,
employees and representatives of your advisors and financiers shall be informed
by you of the confidential nature of such information, shall be directed by you
to treat such information confidentially, and shall agree to be bound by the
terms of this agreement prior to receipt of any Evaluation Material), unless
Primark otherwise consents in writing. You hereby agree to be responsible for
any violations of this letter by any of the other persons referred to in this
paragraph other than Primark.
In the event that you or any of your advisors are requested or required
to disclose any Evaluation Material by legal process or in connection with any
legal proceedings, you agree that you will provide prompt written notice of such
request or requirement to Primark, so that Primark may take whatever steps it
deems appropriate concerning disclosure of this information, including
requesting entry of appropriate protective orders, and/or waive compliance with
the provisions of this agreement. In the event that no such protective order or
other remedy is obtained, or that Primark waives compliance with the terms of
this agreement, you and your advisors will furnish only that portion of the
information which, upon advice of counsel, is required to be provided and will
exercise your reasonable efforts to obtain reliable assurance that the
Evaluation Material will be afforded confidential treatment.
You agree that nothing in this agreement will prevent Primark from (i)
determining that certain Evaluation Material should be disclosed, if at all,
under the terms and conditions which limit its disclosure further than the
limitations set forth above; and (ii) providing access to any such Evaluation
Material only upon further agreement, satisfactory to Primark, which restricts
disclosure of such information in a fashion which is more limited than otherwise
would be permitted under this agreement. In addition, you will, and will cause
your representatives to, honor the confidentiality provisions contained in any
agreements of Primark which are made available to you and your representatives.
You hereby acknowledge that you are aware, and that you will advise
such directors, officers, employees and representatives of your advisors and
financiers who are informed as to the matters which are the subject of this
letter, 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.
In addition, without the prior written consent of both parties, neither
party will and each will direct it respective directors, officers, employees and
representatives of your advisors and financiers not to, disclose to any person
either the fact that discussions or
Mr. Pat Teirney
April 4, 2000
Page 3
negotiations are taking place concerning a Transaction between Primark and you
and any of the terms, conditions or other facts with respect to any such
Transaction, including the status thereof.
In consideration of the Evaluation Material being furnished to you,
you hereby agree that, without the prior written consent of the Board of
Directors of Primark, for a period of one (1) year from the date hereof or
until the occurrence of a Significant Event (as defined below) whichever
comes first, neither you nor any of your affiliates, in any manner
whatsoever, directly or indirectly, will, acting alone or as part of a group,
(a) acquire or offer or agree to acquire, by purchase or otherwise, any
securities (or direct or indirect rights or options to acquire any
securities) of Primark in open market (i.e., trading exchange) transactions
(subject to an exception for passive investments to be mutually agreed upon
by the parties after the execution of this letter agreement), or seek by any
action not permitted under this letter agreement to influence or control the
management or policies of Primark, or (b) publicly propose to (i) acquire or
offer or agree to acquire any securities (or direct or indirect rights or
options to acquire any securities) or assets of Primark or (ii) influence or
control the management or policies of Primark. Nothing herein shall be deemed
or construed to require you or your affiliates to sell any existing holdings
of Primark stock.
In addition, you agree that, for a period of one (1) year from the
date hereof or until the occurrence of a Significant Event (as defined below)
whichever comes first, you will not, directly or indirectly, publicly
present, or publicly propose to present, to the stockholders of Primark any
proposal or offer for a merger, tender or exchange offer or other form of
business combination involving Primark, or effect, publicly propose to
effect, or cause to occur any of the foregoing, that previously has not been
approved in writing by the Board of Directors of Primark, nor will you,
directly or indirectly, solicit or propose (whether publicly or otherwise) to
solicit, proxies or consents to vote or become a participant in any "election
contest" with respect to Primark (as such terms are used in Rule 14 a-1 and
Rule 14a-11 of Regulation 14A under the Securities Exchange Act of 1934, as
amended).
A "Significant Event" shall mean any of the following: (i) the
acquisition by any Person or 13D Group (as defined below) of beneficial
ownership of Voting Securities representing 15% or more of the then
outstanding Voting Securities of Primark; (ii) the announcement or
commencement by any Person or 13D Group of a tender or exchange offer to
acquire Voting Securities which, if successful, would result in such Person
or 13D Group owning, when combined with any other Voting Securities owned by
such Person or 13D Group, 15% or more of the then outstanding Voting
Securities; (iii) Primark enters into, or otherwise determines to seek to
enter into any merger, sale or other business combination transaction
pursuant to which the outstanding shares of common stock of Primark (the
"Common Stock") would be converted into cash or securities of another Person
or 13D Group or 35% or more of the then outstanding shares of Common Stock
would be owned by Persons other than current holders of shares of Common
Stock, or which would result in all or a substantial portion of Primark's
assets being sold to any Person or 13D Group. "Voting Securities" shall mean
at any time shares of any class of capital stock of Primark that are then
entitled to vote generally in the election of directors; provided that for
purposes of this definition any securities that at such time are convertible
or exchangeable into or exercisable for shares of Common Stock shall be
deemed to have been so converted, exchanged or exercised. "13D Group" shall
mean any group of Persons formed for the purpose of acquiring, holding,
voting or disposing of Voting Securities that would be required under Section
13(d) of the Exchange Act and the rules and regulations thereunder to file a
statement on Schedule 13D with the SEC as a "person" within the meaning of
Section 13(d)(3) of the Exchange Act.
Although Primark has endeavored to include in the Evaluation Material
information known to it which it believes to be relevant for the purpose of our
investigation, you understand that neither Primark nor any of its directors,
officers, employees, agents, representatives or advisors have made or make any
representation or warranty as to the accuracy or completeness of the Evaluation
Material. You agree that neither Primark nor its directors, officers, employees,
agents, representatives or advisors shall have any liability to you or any of
your advisors resulting from the availability or use of Evaluation Material.
In the event that you do not proceed with the Transaction which is the
subject of this letter within a reasonable time, you shall promptly return to
Primark at its request all written Evaluation Material and any other written
material containing or reflecting any material in the Evaluation Material
(whether prepared by Primark, its advisors, or otherwise) and will not retain
any copies, extracts, or other reproductions in whole or in part of such written
material, except that all documents, memoranda, notes and other writings
whatsoever prepared by you or your advisors based on the information in the
Evaluation Material or which contain information set
Mr. Pat Teirney
April 4, 2000
Page 4
forth in the Evaluation Material shall be destroyed, and such destruction shall
be certified in writing to Primark by an authorized officer supervising such
destruction.
You and Primark agree that, for a period of one (1) year from the
date of this letter, neither Primark nor Thomson Financial will, directly or
indirectly, solicit for employment or hire any employee of the other with
whom they have had contact or who became known to them in connection with
your consideration of the Transaction. You and Primark agree not to contact
any person employed by Primark or Thomson Financial, respectively, regarding
the subject matter of this letter without our prior written approval.
You acknowledge that Primark may establish procedures and guidelines
(the "Procedures") for the submission of proposals with respect to the
Transaction. You acknowledge and agree that, (a) Primark and its representatives
are free to conduct the process leading up to a possible Transaction as Primark
and its representatives, in their sole discretion, determine (including, without
limitation, by negotiating with any third party and entering into a preliminary
or definitive agreement without prior notice to you or any other person); and
(b) Primark reserves the right, in its sole discretion, to change the Procedures
relating to the 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.
You agree not to initiate or maintain contact (except for contacts made
in connection with existing commercial relationships and/or in the ordinary
course of business) with any officer, director, employee or agent of Primark
except with the express prior permission of Primark. It is understood that
Primark will arrange for appropriate contacts for due diligence purposes. It is
further understood that all (a) communications regarding the Transaction, (b)
requests for additional information, (c) requests for facility tours or
management meetings and (d) discussions or questions regarding Procedures, will
be submitted only to certain designated Primark employees.
You agree that unless and until a definitive agreement between Primark
and you with respect to the Transaction referred to in the first paragraph of
this letter has been executed and delivered, neither Primark nor you will be
under any legal obligation of any kind whatsoever with respect to the
Transaction by virtue of this or any other written or oral communication with
respect to the Transaction by any of Primark's directors, officers, employees,
agents or any other representatives or their advisors and representatives of
those advisors, except for the matters specifically agreed to in this letter.
The agreements set forth in this letter may be modified or waived only by a
separate writing signed by Primark and you expressly modifying or waiving this
agreement.
You also agree that in the event of any breach of the provisions of
this agreement, Primark would be entitled to equitable relief, including an
injunction, because such a breach
Mr. Pat Teirney
April 4, 2000
Page 5
would cause irreparable harm for which there would be no adequate remedy at law.
You agree that you shall not oppose the granting of such equitable relief.
This letter shall be governed by, and construed in accordance with, the
laws of the Commonwealth of Massachusetts.
Very truly yours,
PRIMARK CORPORATION
By: /s/ Joseph E. Kasputys
-----------------------
Name: Joseph E. Kasputys
Title: Chairman, President,
and Chief Executive Officer
CONFIRMED AND AGREED TO:
By: /s/ Patrick J. Tierney
-----------------------
Name:
Title:
Confidentiality Agreement - Primark Corp. and The Thomson Corp.
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