Exhibit 99.5
SIGNATURE BRANDS USA, INC.
February 17, 1998
David Fannin, Esq.
Sunbeam Corporation
1615 South Congress Avenue, Suite 200
Delray Beach, Florida 33445
Dear Sir:
In connection with your meetings and discussions with employees of
Signature Brands USA, Inc. (the 'Company') regarding a possible business
transaction (a 'Transaction'), you have requested certain oral and written
information concerning the Company. As a condition of such meetings and
discussions and being furnished with such information (referred to herein and
defined below as the 'Evaluation Material'), you agree to the following:
1. The Evaluation Material will be used solely for the purpose of
evaluating a possible Transaction involving the Company. Such
information will be kept confidential by you and your representatives,
advisors, directors, officers, employees, affiliates agents and clients
(collectively your 'Representatives'), except that you may disclose the
Evaluation Material or portions thereof to those of your
Representatives who need to know such information for the purpose of
evaluating the merits of a possible Transaction with the Company. You
agree that you will inform your Representatives in advance of the
confidential nature of the Evaluation Material, and that you will be
responsible for any breach of this agreement by your Representatives.
You agree to undertake all reasonable efforts to safeguard the
Evaluation Material you receive from the Company from disclosure or use
other than as permitted hereby.
2. The term 'Evaluation Material' shall mean all oral, written or
electronic information, whether or not labeled, furnished or otherwise
acquired by you from the Company in any manner, whether before, on or
after the date of this agreement, relating to the Company or the
possible Transaction, including but not limited to information
regarding finances, markets, properties, methods of doing business,
personnel, legal affairs, plans, sales, products, processes and
customers. The term 'Evaluation Material' does not include information
which (i) is or becomes generally available to the public other than as
a result of a disclosure by your or any of your Representatives in
violation of this agreement, (ii) was available to you on a
non-confidential basis from a third party prior to its disclosure
pursuant to this agreement, provided that to your knowledge after
inquiry the third party was not bound by a contractual, legal or
fiduciary obligation of confidentiality to the Company and did not
receive the information from another third party source which was so
bound or (iii) becomes available to you on a non-confidential basis
from a third party, provided that to your knowledge after inquiry the
third party is not bound by a contractual, legal or fiduciary
obligation of confidentiality to the Company and did not receive the
information from another third party source who is so bound.
3. Without the prior written consent of the Company, for a period of two
years, you will not, and will direct your Representatives not to,
directly or indirectly, solicit for employment any management employee,
as of the date of this agreement, of the Company. Nothing herein will
preclude you from entering into independent arrangements with persons
who are not currently management employees with the Company.
4. Without the prior written consent of the Company, you will not, and
will direct your Representatives not to, and without your prior written
consent the Company will not, disclose to any person (i) that this
agreement has been entered into; (ii) that any investigators,
discussions or negotiations are taking place concerning a possible
Transaction involving the Company; or (iii) that you have requested or
received Evaluation Material from the Company, or any of the terms,
conditions or other facts with respect to any such possible
Transaction, including the status thereof.
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5. As quickly as practicable following a request by the Company, you will
(i) return to the Company all written material containing any of the
Evaluation Material (whether prepared by the Company or otherwise) and
all copies, extracts or other reproductions in whole or in part of such
written material, in your possession or in the possession of your
Representatives, (ii) destroy all copies of any analyses, compilations,
studies or other documents prepared by you or your Representatives for
your use containing, utilizing or reflecting any Evaluation Material
and (iii) provide the Company with a written certification of such
return and destruction. You acknowledge and agree that such return or
destruction shall not relieve you of your obligations of
confidentiality and your other obligations hereunder.
6. In the event that you or your Representatives are requested or required
(by oral questions, interrogatories, requests for information or
documents, subpoena, investigative demand or similar process) to
disclose any Evaluation Material or any of the information referred to
in paragraph 4 of this letter, you will give the Company prompt written
notice of such request or requirement as promptly as reasonably
practicable under the circumstances and the information which is the
subject thereof so that the Company may seek an appropriate protective
order or other remedy and waive your compliance with the provisions of
this agreement. You will use your best efforts to cooperate with the
Company (at the Company's expense) to obtain such protective order or
other remedy. In the event that such protective order or other remedy
is not obtained or the Company does not waive compliance with the
relevant provisions of this agreement, if you are nonetheless upon
advice of your legal counsel, required to disclose information to a
tribunal (or stand liable for contempt or suffer other censure or
penalty) you may disclose such information to such tribunal; provided,
however, that you shall give the Company notice of the information to
be disclosed as far in advance as reasonably practicable under the
circumstances and shall use your reasonable efforts (at the Company's
expense) to obtain an order or other reliable assurance that
confidential treatment will be accorded to any portion of such
information as the Company designates.
7. You understand and acknowledge that the Company is not making any
representation or warranty, express or implied, as to the accuracy or
completeness of the Evaluation Material and neither the Company nor any
of its stockholders, owners, or Representatives, will have any
liability to you or any other person resulting from your use of or
reliance upon the Evaluation Material.
8. You also understand and agree that unless and until a definitive
Transaction agreement has been executed and delivered, no contract or
agreement providing for a Transaction with the Company shall be deemed
to exist between you and the Company, and neither the Company nor you
will be under any legal obligation of any kind whatsoever with respect
to such Transaction by virtue of this or any written or oral expression
thereof, except, in the case of this agreement, for the matters
specifically agreed to herein. For purposes of this paragraph, the term
'definitive Transaction agreement' does not include an executed letter
of intent or any other preliminary written agreement, nor does it
include any written or oral acceptance of an offer, bid proposal or
expression of interest on your part.
9. Nothing contained in this agreement shall (a) limit the right of the
Company to terminate your access to the Evaluation Material at any
time, to reject any or all proposals and terminate discussions and
negotiations with you or your Representatives at any time, or to enter
into negotiations relating to, or consummate a transaction with, any
other party or parties or (b) limit your right to terminate discussions
with the Company at any time.
10. You agree and acknowledge that irreparable injury may result to the
Company in the event of a breach by you or your Representatives of your
obligations hereunder as to the Company, and in the event of such
breach or threat thereof, the Company shall be entitled to, in addition
to all other remedies and damages available at law or in equity, seek
specific performance, temporary and permanent injunctive relief or
other equitable relief to restrain such breach by you without the
necessity of proving actual damage or the likelihood of irreparable
harm. 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 future
exercise of any right, power or privilege.
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11. This agreement is for the benefit of you and the Company, and shall be
governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts. This agreement is not assignable by you
without the prior written consent of the Company.
12. This agreement and the obligations of the parties hereto shall cease
and be of no further force and effect from and after the third
anniversary of the date hereof except for paragraph 3 of this
agreement.
Please sign both copies of this letter and return one executed copy to me,
which will then constitute our mutual agreement with respect to the subject
matter of this letter.
Very truly yours
SIGNATURE BRANDS USA, INC.
By: /s/ Meeta Vyas
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Meeta Vyas, CEO
ACCEPTED AND AGREED:
as of February 17, 1998.
SUNBEAM CORPORATION
By: /s/ David C. Fannin
------------------------------------
Name: David C. Fannin
Title: Executive Vice President
and General Counsel
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