EXHIBIT 10
[THE CHICAGO CORPORATION LETTERHEAD]
April 13, 1995
Confidential
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General Signal Corp.
One High Ridge Park
P. O. Box 10010
Stamford, Connecticut 06904-2010
Attention: Mr. Philip A. Goodrich
Vice President-Corporate Development
Gentlemen:
This confidentiality agreement is sent to you on behalf of Best Power
Technology, Incorporated ("Best" or the "Company"). We have been authorized to
enter into this agreement on behalf of the Company.
In connection with your considering the possibility of participating in a joint
venture or partnership, partial or other business combination, or investment or
other transaction with respect to Best, you have requested certain financial
information and projections and other information concerning the Company. As a
condition to the Company furnishing to you and your Representatives (as defined
herein) the Evaluation Material (as defined herein) that has not heretofore
been made available to the public, you agree that for a period of two (2) years
from the receipt of any Evaluation Material hereunder, you will (i) treat the
Evaluation Material furnished to you by the Company, or the Company's
Representatives, at any time in connection with such transaction, in accordance
with the provisions of this letter agreement, and (ii) take or abstain from
taking certain other actions herein set forth.
As used herein, the term "Evaluation Material" refers to any and all data,
reports, analyses, compilations, studies, projections, forecasts, records and
all other financial, technical, commercial or other information concerning the
business and affairs of the Company (whether prepared by the Company, its
advisors or otherwise) that may be provided to you, irrespective of the form of
the communication, by or on behalf of the Company. The term "Evaluation
Material" also includes all analyses, compilations, studies or other material
prepared by you or your partners, directors, employees, agents, advisory,
representatives of your advisors and any commercial or investment banks
participating in the financing of any transaction (collectively, your
"Representatives") containing or based on in whole or in part, any information
furnished by the Company or any of its representatives. The term
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"Evaluation Material" does not include information which (i) is already in your
or your Representative's possession, provided that such information is not
known by you or your Representatives to be the subject of another
confidentiality agreement with, or other obligation of secrecy to, the Company,
(ii) becomes generally available to the public other than as a result of a
disclosure by you or your Representatives in violation of this Agreement, or
(iii) becomes available to you or your Representatives from a source other than
the Company or its Representatives, provided that such source is not known by
you or the party receiving such information to be bound by a confidentiality
agreement with, or other obligation of secrecy to, the Company which would
prohibit such source from making such information available to the party
receiving the same, or (iv) is independently developed by you without any use
of the Evaluation Material.
In connection with the Evaluation Material:
(1) You hereby recognize and acknowledge the competitive value and
confidential nature of the Evaluation Material and the damage that could
result to Best if information contained therein is disclosed to any third
party.
(2) You hereby agree that the Evaluation Material will be used solely for the
purpose of evaluating a possible transaction between you and Best as set
forth on the first page of this letter agreement. You also hereby agree
that you will not, without the prior written consent of Best or the
Company's authorized representative, disclose any of the Evaluation
Material now or hereafter received or obtained from Best or Best's
representatives to any person unless otherwise permitted by this agreement
or unless you are required to do so by applicable law or legal process;
provided, however, that any such information may be disclosed to your
Representatives who need to know such information for the purpose of
evaluating your possible participation in a transaction with Best (it
being understood that such persons shall be informed by you of the
confidential nature of such information and shall agree to treat such
information confidentially). You agree to be responsible for any breach
of this Agreement by any of your representatives. The term "person", as
used in this confidentiality agreement, shall be broadly construed to
include, without limitation, any corporation, limited liability company,
partnership or individual.
(3) In addition, without the prior written consent of Best or
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April 13, 1995
Page 3
Best's authorized representative, you will not and you will direct your
Representatives not to disclose to any person (i) either the fact that
discussions or negotiations are taking place concerning such a possible
transaction or any of the terms, conditions or other facts with respect to
any such possible transaction, including the status thereof or the
termination of discussions or negotiations with the Company or (ii) the
fact that this Agreement exists or that Evaluation Material has been made
available to you; provided, however, that the foregoing shall not apply to
such disclosures as are required by law or legal process.
(4) If you determine not to proceed with a transaction or any transaction
contemplated by this confidentiality agreement is not consummated: (a)
neither you nor your Representatives shall, without the prior written
consent of Best or Best's authorized representatives, use any of the
Evaluation Material now or hereafter received or obtained from Best or
Best's representatives, for any purpose; and (b) you shall redeliver to
the Company or destroy all tangible Evaluation Material and any other
tangible material containing, prepared on the basis of, or reflecting any
information in the Evaluation Material (whether prepared by the Company,
its advisors or otherwise) and will not retain any copies, extracts or
other reproductions in whole or in part of such tangible material.
(5) You agree that Best shall be entitled to equitable relief, including
injunction and specific performance, in the event of any breach of this
agreement, in addition to all other remedies available to Best at law or
in equity.
(6) If you are advised by your counsel that facts (a) disclosed in the
Evaluation Material or (b) not permitted to be disclosed pursuant to
paragraphs (2) or (3) above (other than pursuant to the provisos in those
paragraphs), must be disclosed in accordance with applicable law or legal
process, including disclosures necessary for you to comply with the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") and the
rules and regulations thereunder, including any disclosures required to be
made in accordance with Schedule 13D of the Exchange Act, such disclosures
shall contain only those disclosures which you are legally compelled to
disclose and shall be made at the latest time practicable consistent, in
the opinion of your counsel, with your obligations under the Exchange Act;
and provided that
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April 13, 1995
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any disclosure required to be made by law or legal process shall first be
disclosed to the Company in the form proposed to be otherwise disclosed at
least one business day prior to making such disclosure and you shall
cooperate with the Company in order that the necessary disclosures may be
made in a manner minimizing any risk to the Company and its business.
(7) If you or anyone to whom you supply the Evaluation Material receives a
request to disclose all or any part of the information contained in the
Evaluation Material or the matters referred to in the preceding paragraphs
under the terms of a subpoena, order, civil investigative demand or
similar process issued by a court of competent jurisdiction or by a
governmental body, you agree to (i) immediately notify Best of the
existence, terms and circumstances surrounding such request; (ii) take
reasonable steps to consult with Best on the advisability of taking
legally available steps to resist or narrow such request; and (iii) if
disclosure of such information is required, furnish only that portion of
the Evaluation Material which, in the opinion of your counsel, you are
legally compelled to disclose and exercise your efforts at the expense of
the Company to obtain an order or other reliable assurance that
confidential treatment will be accorded to such portion of the disclosed
information which the Company so designates.
(8) You hereby acknowledge that you are aware, and that you will advise each
of your Representatives who are aware of 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
concerning the matters which are the subject of this letter 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.
(9) You understand and agree that neither we nor Best makes any representation
or warranty as to the accuracy or completeness of the Evaluation Material.
The Evaluation Material is not intended to provide the sole basis for any
investment or other decision and you understand that you must determine
the relevance of the Evaluation Material and any decision should be based
on such investigation as you may conclude is appropriate. In addition,
you agree that
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April 13, 1995
Page 5
neither we nor Best, nor Best's representatives, shall have any liability
to you, your Representatives or any other third party resulting from the
use of the Evaluation Material by you or your Representatives, except as
may be hereinafter agreed to in a definitive agreement against which
liability may be claimed.
(10) You agree that, for a period of two (2) years from the date of this
Agreement, unless such action shall have been specifically requested in
writing by the Board of Directors of the Company, neither you nor any of
your Representatives, affiliates or associates (as such terms are defined
under the Exchange Act) will in any manner, directly or indirectly, (a)
effect or seek, offer or propose (whether publicly or otherwise) to
effect, or cause or participate in (i) any acquisition of any securities
(or beneficial ownership thereof) or assets of the Company or any of its
subsidiaries; (ii) any tender or exchange offer or merger or other
business combination involving the Company or any of its subsidiaries;
(iii) any recapitalization, restructuring, liquidation, dissolution or
other extraordinary transaction with respect to the Company or any of its
subsidiaries; or (iv) any "solicitation" of "proxies" (as such terms are
used in the proxy rules of the Securities and Exchange Commission) or
consents to vote any voting securities of the Company, (b) form, join or
in any participate in a "group" (as defined under the Exchange Act), (c)
otherwise act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of the Company,
(d) take any action which might force the Company to make a public
announcement regarding any of the types of matters set forth in (a) above,
or (e) enter into any discussions or arrangements with any third party
with respect to any of the foregoing. You also agree during any such
period not to request the Company (or its directors, officers, employees
or agents), directly or indirectly, to amend or waive any provision of
this paragraph. Nothing contained in this paragraph 10 shall restrict you
from taking any action in the event the Company publicly announces that it
is considering a specific transaction with respect to, or has entered into
any arrangement or understanding with respect to, the sale of all or any
substantial portion of the Company (other than any such arrangement or
understanding with you), or from making a tender offer for all of the
outstanding capital stock of the Company after such time as a third party
has commenced,
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April 13, 1995
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within the meaning of Rule 14d-2 of the Exchange Act, a tender offer for
the company at a lower value.
(11) You hereby agree that prior to consummation of a transaction contemplated
by the first paragraph of this letter, without the prior written consent
of the Company, neither you nor your affiliates or associates shall
directly or indirectly, initiate, or engage or participate in any
discussions or negotiations or enter into any agreement or arrangements
regarding the sale of any assets of the Company except with respect to
agreements with lenders providing financing for such transaction and
provided that a definitive agreement then exists.
(12) You agree that if the transaction contemplated by this Agreement is not
consummated, without the prior express written consent of the Company,
neither you nor your agents shall directly or indirectly initiate any
discussions or negotiations regarding the hiring of any officer or
employee of the Company or its subsidiaries so employed at the time.
Nothing contained herein shall preclude general solicitation of
employment, through advertisements or similar means.
(13) You hereby represent that, as of the date hereof, you and your Affiliates
and Associates and any other person or entity with whom you are acting in
concert in connection with this matter or have formed a "group" within the
meaning of Section 13(d)(3) of the Exchange Act do not beneficially own
any shares of Common Stock of the Company for which we have any Securities
or Exchange Act reporting responsibilities.
(14) You understand that (i) the Company and The Chicago Corporation ("TCC")
shall conduct the process for a possible transaction as they in their sole
discretion shall determine, (ii) the Company shall have the right to
reject or accept any potential buyer, proposal or offer, for any reason
whatsoever, in its sole discretion, and (iii) neither you nor any of your
Representatives shall have any claims whatsoever against the Company or
TCC or any of their respective directors, officers, stockholders, owners,
affiliates or agents arising out of or relating to the transaction (other
than those against the parties to a definitive agreement with you in
accordance with the terms thereof).
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April 13, 1995
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(15) It is further understood and agreed that TCC will arrange for appropriate
contacts for due diligence purposes. It is also understood and agreed
that all (i) communications regarding a possible transaction, (ii)
requests for additional information, (iii) requests for facility tours or
management meetings and (iv) discussions or questions regarding
procedures, will be submitted or directed exclusively to TCC, and that
none of you or your Representatives who are aware of the Evaluation
Material and/or the possibility of a transaction will initiate or cause to
be initiated any communication with any director, officer or employee of
the Company concerning the Evaluation Material, a transaction or any other
aspect of the business, governance or direction of the Company.
(16) You agree that unless and until a definitive agreement between the Company
and you with respect to any 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 transaction, other than as specifically
set forth therein.
(17) This agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which shall constitute the
same agreement. This agreement shall expire two (2) years from the date
of signing at which time you shall return any Evaluation Materials in your
possession.
(18) The agreement evidenced by this confidentiality agreement shall be
governed by the laws of the State of New York.
Please indicate your agreement with the terms of this confidentiality agreement
by signing and returning to us the enclosed copy of this confidentiality
agreement.
Sincerely,
THE CHICAGO CORPORATION
By: /s/ Frederic D. Floberg
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ACCEPTED AND AGREED
This 13th day of April, 1995
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GENERAL SIGNAL CORP.
By: /s/ Philip A. Goodrich
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Title: Vice President
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