{"id":40764,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/confidentiality-agreement-kraft-foods-inc-and-balance-bar-co.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"confidentiality-agreement-kraft-foods-inc-and-balance-bar-co","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/confidentiality-agreement-kraft-foods-inc-and-balance-bar-co.html","title":{"rendered":"Confidentiality Agreement &#8211; Kraft Foods Inc. and Balance Bar Co."},"content":{"rendered":"<pre> \n                                                                November 2, 1999\n\nKraft\nThree Lakes Drive\nNorthfield, IL  60093\n\n\nAttention:  Mr. William J. Eichar\n            Vice President - Mergers and Acquisitions\n\n\nLadies and Gentlemen:\n\n  In connection with your consideration of a possible acquisition by you of all\nor part of, or investment in, Balance Bar Company (the 'Company') by way of\nmerger, a sale of assets or stock, or otherwise (a 'Transaction'), you have\nrequested information concerning the Company. Salomon Smith Barney Inc. ('SSB')\nis acting as adviser to the Company.\n\n  As a condition to your being furnished with such information, including any\nConfidential Information Memorandum prepared by the Company, you agree to treat\nany information concerning the Company, its affiliates and subsidiaries that is\nfurnished to you by or on behalf of the Company, whether furnished before or\nafter the date of this letter, together with analyses, compilations, studies or\nother documents prepared by you or any of your directors, officers, employees,\nagents or advisers (including, without limitation, attorneys, accountants,\nconsultants, bankers, financial advisers and any representatives of your\nadvisers) (collectively referred to as the 'Evaluation Material'), in accordance\nwith the provisions of this agreement. The term 'Evaluation Material' does not\ninclude information that (a) was or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives or (b) was\nor becomes available to you on a non-confidential basis from a source other than\nthe Company or its advisers, provided that such source was not known by you to\nbe bound by any agreement with the Company to keep such information\nconfidential, or otherwise prohibited from transmitting the information to you\nby a contractual, legal or fiduciary obligation.\n\n  You hereby agree that the Evaluation Material will be used solely for the\npurpose of evaluating a possible Transaction between the Company and you, and\nthat such information will be kept confidential by you and your Representatives,\nexcept to the extent that disclosure of such information (a) has been consented\nto in writing by the Company, (b) is required by law, regulation, supervisory\nauthority or other applicable judicial or governmental order or (c) is made to\nyour Representatives who need to know such information for the purpose of\nevaluating any such possible Transaction between the Company and you (it being\nunderstood that such Representatives shall have been advised of this agreement\nand shall have agreed to be bound by the provisions hereof). In any event, you\nshall be responsible for any breach of this agreement by any of your\nRepresentatives and you agree, at your sole expense, to take all reasonable\nmeasures (including but not limited to court\n \nproceedings) to restrain your Representatives from prohibited or unauthorized\ndisclosure or use of the Evaluation Material. You further agree that the\nEvaluation Material that is in written form shall not be copied or reproduced at\nany time without the prior written consent of the Company.\n\n  In addition, without the prior written consent of the Company, you will not,\nand will direct your Representatives not to, disclose to any person (a) that the\nEvaluation Material has been made available to you or your Representatives, (b)\nthat discussions or negotiations are taking place concerning a possible\nTransaction between the Company and you or (c) any terms, conditions or other\nfacts with respect to any such possible Transaction, including the status\nthereof.\n\n  In the event that you are requested or required by law, regulation,\nsupervisory authority or other applicable judicial or governmental order to\ndisclose any Evaluation Material, you will provide the Company with prompt\nwritten notice of such request or requirement so that the Company may seek an\nappropriate protective order. If, failing the entry of a protective order, you\nare, in the opinion of your counsel, compelled to disclose Evaluation Material,\nyou may disclose that portion of the Evaluation Material that the Company's\ncounsel advises that you are compelled to disclose and will exercise reasonable\nefforts to obtain assurance that confidential treatment will be accorded to that\nportion of the Evaluation Material that is being disclosed. In any event, you\nwill not oppose action by the Company to obtain an appropriate protective order\nor other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\n\n  Until the earliest of (a) the execution by you of a definitive agreement\nregarding a Transaction with the Company, (b) an acquisition of the Company by a\nthird party, or (c) three years from the date of this agreement, you agree not\nto initiate or maintain contact (except for those contacts made in the ordinary\ncourse of business) with any officer, director, employee, customer, supplier or\nvendor of the Company regarding the Company's business, operation, prospects or\nfinances, except with the express permission of the Company. It is understood\nthat SSB will arrange for appropriate contacts for due diligence purposes. All\n(i) communications regarding this transaction, (ii) requests for additional\ninformation, (iii) requests for facility tours or management meetings, and (iv)\ndiscussions or questions regarding procedures, will be submitted or directed to\nSSB.\n\n  You agree not to solicit for employment any of the current employees of the\nCompany to whom you had been directly or indirectly introduced or otherwise had\ncontact with as a result of your consideration of a Transaction so long as they\nare employed by the Company or solicit any customers, clients, or accounts of\nthe Company, during the period in which there are discussions conducted pursuant\nhereto and for a period of one year thereafter, without the prior written\nconsent of the Company.\n\n  In consideration of the Evaluation Material being furnished to you, you hereby\nfurther agree that, without the prior written consent of the Board of Directors\nof the Company, for a period of [three] years from the date hereof, neither you\nnor any of your affiliates (as such term is defined in Rule 12b-2 under the\nSecurities Exchange Act of 1934, as amended), acting alone or as part of a\ngroup, will (1) acquire or offer or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or securities convertible into\nvoting securities of the Company, (2) propose to enter into, directly or\nindirectly, any merger or business combination involving the Company or any of\nits subsidiaries, (3) otherwise seek to influence or control, in any manner\nwhatsoever (including proxy solicitation or otherwise), the management or\npolicies of the Company or (4) assist, advise or encourage (including by\nknowingly providing or arranging financing for that purpose) any other\n\n                                       2\n \nperson in doing any of the foregoing.\n\n  You hereby acknowledge that you are aware and that you will advise your\nRepresentatives that the federal and state securities laws prohibit any person\nwho has material, non-public information about a company from purchasing or\nselling securities of such a company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities.\n\n  All Evaluation Material disclosed by the Company shall be and shall remain the\nproperty of the Company. Within five days after being so requested by the\nCompany, you shall return or destroy all documents thereof furnished to you by\nthe Company. Except to the extent a party is advised in writing by counsel such\ndestruction is prohibited by law, you will also destroy all written material,\nmemoranda, notes, copies, excerpts and other writings or recordings whatsoever\nprepared by you or your Representatives based upon, containing or otherwise\nreflecting any Evaluation Material. Any destruction of materials shall be\nconfirmed by you in writing. Any Evaluation Material that is not returned or\ndestroyed, including without limitation any oral Evaluation Material, shall\nremain subject to the confidentiality obligations set forth in this agreement.\n\n  You understand and acknowledge that any and all information contained in the\nEvaluation Material is being provided without any representation or warranty,\nexpress or implied, as to the accuracy or completeness of the Evaluation\nMaterial, on the part of the Company or SSB. You agree that none of the Company,\nSSB or any of their respective affiliates or representatives shall have any\nliability to you or any of your Representatives. It is understood that the scope\nof any representations and warranties to be given by the Company will be\nnegotiated along with other terms and conditions in arriving at a mutually\nacceptable form of definitive agreement should discussions between you and the\nCompany progress to such a point.\n\n  You agree that unless and until a definitive agreement regarding a Transaction\nbetween the Company and you has been executed, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a\nTransaction by virtue of this agreement except for the matters specifically\nagreed to herein. You further acknowledge and agree that the Company reserves\nthe right, in its sole discretion, to reject any and all proposals made by you\nor any of your Representatives with regard to a Transaction between the Company\nand you, and to terminate discussions and negotiations with you at any time.\n\n  You understand that (a) the Company shall be free to conduct any process with\nrespect to a possible Transaction as the Company in its sole discretion shall\ndetermine (including, without limitation, by negotiating with any prospective\nparty and entering into a definitive written agreement without prior notice to\nyou or any other person), (b) any procedures relating to such Transaction may be\nchanged at any time without notice to you or any other person and (c) you shall\nnot have any claim whatsoever against the Company or SSB or any of their\nrespective directors, officers, stockholders, owners, affiliates, agents or\nrepresentatives, arising out of or relating to any possible or actual\nTransaction (other than those as against parties to a definitive written\nagreement with you in accordance with the terms thereof).\n\n  It is understood and agreed that money damages would not be a sufficient\nremedy for any breach of this agreement and that the Company shall be entitled\nto specific performance and injunctive or other equitable relief as a remedy for\nany such breach and you further agree to waive any requirement for the security\nor posting of any bond in connection with such remedy. Such remedy\n\n                                       3\n \nshall not be deemed to be the exclusive remedy for breach of this agreement but\nshall be in addition to all other remedies available at law or equity to the\nCompany.\n\n  In the event of litigation relating to this agreement, if a court of competent\njurisdiction determines in a final, non-appealable order that a party has\nbreached this agreement, then such party shall be liable and pay to the non-\nbreaching party the reasonable legal fees such non-breaching party has incurred\nin connection with such litigation, including any appeal therefrom.\n\n  This agreement is for the benefit of the Company and SSB and is governed by\nthe laws of the State of New York without regard to conflict of laws principles.\nAny action brought in connection with this agreement shall be brought in the\nfederal or state courts located in the City of New York, and the parties hereto\nhereby irrevocably consent to the jurisdiction of such courts. Your obligations\nunder this agreement shall terminate three (3) years after the date hereof,\nexcept as otherwise explicitly stated above.\n\n  This agreement may not be amended except in writing signed by both parties\nhereto. No failure or delay by the Company in exercising any right hereunder or\nany partial exercise thereof shall operate as a waiver thereof or preclude any\nother or further exercise of any right hereunder. The invalidity or\nunenforceability of any provision of this agreement shall not affect the\nvalidity or enforceability of any other provisions of this agreement, which\nshall remain in full force and effect.\n \n  This agreement may be executed in counterparts. Please confirm that the\nforegoing is in accordance with your understanding of our agreement by signing\nand returning to us a copy of this letter.\n\n\n                                         Very truly yours,\n\n                                         SALOMON SMITH BARNEY INC.\n                                         on behalf of\n                                         BALANCE BAR COMPANY\n\n                                         By:\n                                            --------------------------\n\nAccepted and agreed to as of\nthe date set forth above:\n\nKraft\n\n\nBy:\n   -----------------------------\n\n                                       4\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6837,8003],"corporate_contracts_industries":[9424,9425],"corporate_contracts_types":[9553,9558],"class_list":["post-40764","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-balance-bar-co","corporate_contracts_companies-kraft-foods-inc","corporate_contracts_industries-food__diversified","corporate_contracts_industries-food__grains","corporate_contracts_types-corporate","corporate_contracts_types-corporate__nondisclose"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40764","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40764"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40764"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40764"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40764"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}