Exhibit (e)(1)
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DUFF & PHELPS CREDIT RATING CO.
55 EAST MONROE STREET
CHICAGO, ILLINOIS 60603
(312) 368-3100
FAX (312) 422-4121
January 25, 2000
FIMALAC
97, rue de Lille
Paris France 75007
Attention: Veronique Morali
Managing Director
Ladies and Gentlemen:
In order to allow you to evaluate a possible transaction with Duff & Phelps
Credit Rating Co. (the "Company") involving an investment in or acquisition of
all or a part of the Company (the "Transaction"), representatives of the
Company will deliver to you, upon your execution and delivery to the Company
of this letter agreement, certain information about the properties and
operations of the Company. All information about the Company furnished by the
Company or its affiliates, directors, officers, employees, agents or
controlling persons (such affiliates and other persons collectively referred
to herein as "Representatives") after the date hereof, is referred to in this
letter agreement as "Proprietary Information." Proprietary Information does
not include, however, information which (a) is or becomes generally available
to the public other than as a result of disclosure by you or your
Representatives, (b) was available to you on a nonconfidential basis prior to
its disclosure by the Company, or (c) becomes available to you on a
nonconfidential basis from a person other than the Company who is not
otherwise known to you to be bound by a confidentiality agreement with the
Company or its Representatives, or is not otherwise known to you to be
prohibited from transmitting the information to you. As used in this letter,
the term "person" shall refer to any individual, corporation, company,
partnership, trust, limited liability company or other entity.
Unless otherwise agreed to in writing by the Company, you agree (a)
except as required by applicable law, regulation or legal process, to keep
all Proprietary Information confidential and (except as described in the next
paragraph) not to disclose or reveal any Proprietary Information to any other
person, including any of your Representatives, except that you may disclose
the Proprietary Information to those of your Representatives who are
specifically involved in, and who need to know such information for the
purpose of, evaluating the Transaction (the "Access Employees"), provided
that you cause those persons to observe the terms of this letter agreement,
and (b) not to use Proprietary Information for any purposes other than in
connection with the
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DUFF & PHELPS CREDIT RATING CO.
FIMALAC 55 EAST MONROE STREET
JANUARY 25, 2000 CHICAGO, ILLINOIS 60603
PAGE 2 (312) 368-3100
FAX (312) 422-4121
evaluation and consummation of the Transaction. You will be responsible for
any breach of the terms hereunder by you or your Representatives and for the
compliance with the terms of this letter by the Access Employees. Proprietary
Information may not be photocopied, reproduced or distributed to persons
other than Access Employees at any time, in whole or in part, without the
prior written consent of the Company.
If you or any of your Representatives are requested pursuant to, or
required by, applicable law or regulation or by legal process to disclose
any Proprietary Information, we are informing you that the Company may wish
to seek an appropriate protective order. You agree in the event of any such
request or requirement that you will provide the Company, as promptly as the
circumstances reasonably permit, with notice of such request or requirement
and, unless a protective order or other appropriate relief is previously
obtained, the Proprietary Information, subject to such request, may be
disclosed pursuant to and in accordance with the terms of such request or
requirement, provided that you shall use your reasonable best efforts to
limit any such disclosure to the terms of such request or requirement.
Unless otherwise required by applicable law, regulation or legal process,
neither you nor any of your Representatives will, without the prior written
consent of the Company, disclose to any person (other than Access
Employees) any information about the Transaction, or the terms, conditions or
other facts relating thereto, including, but not limited to, the fact that
discussions are taking place with respect thereto, or the status thereof, or
the fact that the Proprietary Information has been made available to you.
You agree that all inquiries, requests for information and other
communications with the Company shall be made through Paul McCarthy or Phil
Maffei, unless previously authorized by the Company in writing.
At any time, upon the request of the Company, you will promptly destroy
or deliver to the Company all of the Proprietary Information delivered to
you by the Company and any copies and reproductions thereof. All summaries,
analyses or extracts thereof or based thereon in your possession or in the
possession of any of the Access Employees will be destroyed.
Although the Proprietary Information contains information which the
Company believes to be relevant for the purpose of your evaluation of the
Transaction, none of the Company and its Representatives make any
representation or warranty as to the accuracy or completeness of the
Proprietary Information. Neither the Company, its affiliates or
Representatives, nor any of their respective officers, directors, employees,
agents or controlling persons shall have any liability to you or any of your
Representatives relating to or arising from the use of the Proprietary
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DUFF & PHELPS CREDIT RATING CO.
FIMALAC 55 EAST MONROE STREET
JANUARY 25, 2000 CHICAGO, ILLINOIS 60603
PAGE 3 (312) 368-3100
FAX (312) 422-4121
Information. You shall be entitled to rely solely on the representations and
warranties made to you in a definitive agreement, when, as and if executed
and subject to limitations and restrictions as may be specified in such
agreement.
Without prejudice to the rights and remedies otherwise available to the
Company, the Company shall, in addition to all other remedies available at
law or in equity, be entitled to equitable relief by way of injunction if you
or any of your Representatives breach or threaten to breach any of the
provisions of this letter agreement.
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 without prior written consent of the Company, you will
not for a period of one year from the date hereof (i) acquire, or agree to
acquire, directly or indirectly, by purchase or otherwise, any voting
securities of the Company, or direct or indirect rights or options to acquire
any voting securities of the Company, (ii) make, or in any way participate
directly or indirectly, in any "solicitation" of any "proxy" to vote (as such
terms are used in the proxy rules of the Securities and Exchange Commission)
or seek to advise or influence any person or entity with respect to the
voting of any voting securities of the Company, (iii) form, join or in any
way participate, directly or indirectly, in a "group" within the meaning of
Section 13(d) (3) of the Securities Exchange Act of 1934, as amended, with
respect to any voting securities of the Company, or (iv) otherwise act, alone
or in concert with others, directly or indirectly, to seek control of the
management, board of directors, or policies of the Company; PROVIDED that, in
the event that, after the date hereof, we waive any of our rights pursuant to
this paragraph for any other party who has executed or hereafter executes a
similar letter agreement in connection with a Transaction, we will promptly
inform you of such waiver and give you the option of a waiver to the same
extent and on the same terms that we have given to such other party and,
PROVIDED, FURTHER, that if the Board of Directors of the Company approves a
Transaction with any person, then you shall be permitted to (x) seek, (y)
offer to negotiate with or (z) make a statement or proposal to the Company or
Company representatives, in each case, to acquire more than 50% of the
outstanding Common Stock of the Company or all or substantially all of the
assets of the Company, provided that the offer is at a price and on terms
that are financially superior to the price and terms of the transaction
proposed by such other person.
The Company and you agree that, without the prior written consent of the
other party hereto, neither the Company nor you will for a period of six
months from the date hereof directly
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DUFF & PHELPS CREDIT RATING CO.
FIMALAC 55 EAST MONROE STREET
JANUARY 25, 2000 CHICAGO, ILLINOIS 60603
PAGE 4 (312) 368-3100
FAX (312) 422-4121
or indirectly solicit for employment or employ any person who is now employed
by the other party hereto and who is identified by the Company or you as a
result of the evaluation or otherwise in connection with the Transaction
provided, however, that neither the Company nor you shall be prohibited from
employing any such person who contacts the Company or you on his or her own
initiative and without any direct or indirect solicitation by the Company or
you.
You agree that unless and until a definitive agreement between the
Company and you with respect to the transaction has been executed and
delivered, neither the Company nor you will be under any legal obligation of
any kind whatsoever with respect to such a transaction by virtue of this or
any written or oral expression or communication by any of the Company's, or
your directors, officers, employees, agents, controlling persons or any other
Representatives or advisors thereof, except, in the case of this letter, for
the matters specifically agreed to herein. The agreement set forth in this
paragraph may be modified or waived only by a separate writing by the Company
and you expressly modifying such agreement.
You agree that the Company reserves the right, in its sole and absolute
discretion, to reject any or all proposals, to decline to furnish further
Proprietary Information and to terminate discussions and negotiations with
you at any time. The exercise by the Company of these rights shall not affect
the enforceability of any provision of this agreement.
* * *
FIMALAC
JANUARY 25, 2000
PAGE 5
This letter agreement shall be governed by and interpreted in accordance
with the internal laws of the State of New York. If you agree in accord with
the foregoing, please have this letter agreement executed on your behalf and
return the duplicate copy to the undersigned.
Very truly yours,
DUFF & PHELPS CREDIT RATING CO.
By: /s/ Paul McCarthy
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Name: Paul McCarthy
Title: Chairman and Chief Executive Officer
Accepted and Agreed
As of the date
first written above:
FIMALAC
By: /s/ Veronique Morali
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Name: Veronique Morali
Title: Managing Director