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Exhibit 3
January 30, 1995
Eridania Beghin-Say, S.A.
54, avenue Hoche
75008 Paris
France
Attention: Stefano Meloni
CONFIDENTIALITY AGREEMENT
Gentlemen:
You have expressed an interest in a possible transaction (a
"Transaction") involving American Maize-Products Company and/or one or more of
its subsidiaries or affiliates (collectively, the "Company") and, in connection
with such Transaction, the Company has agreed to make available to you
information pertaining to the Company which is not available to the general
public or is otherwise confidential or proprietary in nature (such information,
and all copies of, extracts from, analyses and other materials based on,
containing or otherwise reflecting such information, is hereinafter referred to
as the "Information"). As a condition to your being furnished the Information,
you (together with your subsidiaries and affiliates, the "Recipient") agree as
follows:
(1) (a) Non-disclosure: Recipient recognizes and acknowledges the
competitive value of the Information and the damage that could
result from the disclosure thereof to third parties.
Accordingly, Recipient agrees to keep the Information strictly
confidential and Recipient will not, without the prior written
consent of the Company, disclose the Information (or the fact
that the Information has been made available) to any third party
in any manner whatsoever, in whole or in part, except that
Recipient may disclose the Information to those of Recipient's
directors, officers, employees, agents, advisors or other
representatives (collectively, "Representatives") who (i) need to
know the Information for the purpose of evaluating the proposed
Transaction, (ii) have been informed of the confidential nature
of the Information and (iii) have agreed to keep the Information
confidential and be bound by the terms of this Agreement as if
they were parties hereto. Notwithstanding any such agreement by
Recipient's Representatives, Recipient agrees to be responsible
for and to indemnify the Company and its Representatives against
any breach by any of Recipient's Representatives of the matters
referred to herein.
(b) Restrictions on Use: The Information will not, without the prior
written consent of the Company, be used by Recipient or its
Representatives, directly or indirectly, for any purpose other
than the evaluation of the Transaction and such use shall
absolutely cease if and when the Company has so notified
Recipient. In addition, Recipient hereby acknowledges that
Recipient is aware (and, if applicable, that
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Recipient's Representatives have been advised) that the United
States securities laws prohibit any person who has material
non-public information about a company from purchasing or selling
securities of such company or from communicating such information
to a third party under circumstances in which it is reasonably
foreseeable that such third party is likely to purchase or sell
such securities.
(c) Return of Information: Upon the request of the Company, Recipient
shall, and shall cause its Representatives to, promptly return all
Information to the Company, without retaining any copies,
summaries or extracts thereof. In the event of such request, all
documents, analyses, compilations, studies or other materials
prepared by Recipient or its Representatives that contain or
reflect Information shall be destroyed and no copy thereof shall
be retained (such destruction to be confirmed in writing by a duly
authorized officer of Recipient). Notwithstanding the return or
destruction of the Information, Recipient and its Representatives
shall continue to be bound by their obligations of confidentiality
and other obligations hereunder.
For purposes of this Agreement, the term "Information" shall not include
such portions of the Information that (i) are or become generally
available to the public other than as a result of disclosure by Recipient
or its Representatives, (ii) become available to Recipient on a
non-confidential basis from a source not known by you after reasonable
inquiry to be subject to a confidentiality obligation to the Company,
whether by contractual, legal or fiduciary obligation or otherwise or
(iii) were, as evidenced by written records or other documentation
satisfactory to the Company, in Recipient's possession on a non-
confidential basis prior to the Company's disclosure to Recipient.
(2) Recipient acknowledges, on behalf of itself and its Representatives, that
neither the Company nor its Representatives make any representations or
warranties, express or implied, as to the accuracy or completeness of the
Information, that neither the Company nor its Representatives shall have
any liability whatsoever to Recipient or its Representatives or any other
person as a result of the use of the Information or any errors therein or
omissions therefrom by virtue of this Agreement and that Recipient and
its Representatives shall assume full responsibility for all conclusions
derived from the Information. Only those representations and warranties
that are made in a final definitive agreement between the Company and
Recipient regarding a Transaction, when, as and if executed and subject
to such limitations and restrictions as may be specified therein, will
have any legal effect. Recipient further acknowledges and agrees that
the Company shall at all times have the right, in its sole discretion, to
reject any and all proposals made by Recipient and/or its Representatives
in respect of a Transaction, to terminate discussions and negotiations
with Recipient and its Representatives at any time and to conduct any
process for a Transaction involving the Company as it may determine
(including, without limitation, negotiating with any other interested
parties, entering into a definitive agreement with such parties or
modifying any procedures relating to such process or Transaction, in each
case, without prior notice to Recipient or its Representatives).
(3) In the event that a Transaction is not consummated, neither Recipient nor
its Representatives shall, directly or indirectly, solicit for employment
any of the Company's personnel for a period of two years from the date
hereof, except with the prior written approval of the Company.
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(4) In the event that you or any of your Representatives are required to
disclose any Information (i) in connection with any judicial or
administrative proceedings (by oral questions, interrogatories, requests
for information or documents, subpoena, investigative demand or similar
process) or (ii) in order, in the opinion of your outside legal counsel,
to avoid violating the federal securities laws, you will in advance of
such disclosure, provide the Company with prompt notice of such
requirement(s). You also agree, to the extent legally permissible, to
provide the Company, in advance of any such disclosure with copies of
any Information you intend to disclose (and, if applicable, the text of
the disclosure language itself) and to cooperate with the Company to the
extent it may seek to limit such disclosure. If, in the absence of a
protective order or the receipt of a waiver from the Company after a
request in writing therefor is made by you (such request to be made as
soon as practicable to allow the Company a reasonable amount of time to
respond thereto), you or your Representatives are legally required to
disclose Information to any tribunal in order to comply with the federal
securities laws, you may disclose such information without liability
hereunder.
(5) Recipient hereby agrees that money damages would not be a sufficient
remedy for any breach or threatened breach of this Agreement by
Recipient or its Representatives and that the Company shall be entitled,
without the requirement of posting a bond or other security, to specific
performance and injunctive or other equitable relief in the event of any
such breach or threatened breach, in addition to all other remedies
available to the Company at law or in equity.
Recipient hereby agrees to indemnify, defend, and hold harmless the
Company and its affiliates and Representatives (each an "Indemnified
Person") from and against any losses, claims, damages or liabilities
arising out of a breach or alleged breach of this Agreement by Recipient
or its Representatives and to reimburse each Indemnified Person for all
costs and expenses (including counsel fees) incurred in connection
therewith. Such indemnity agreement shall be in addition to any other
liabilities that Recipient or its Representatives may have to any
Indemnified Person.
(6) All inquiries for information about the Company or the Transaction and
any communications with the Company shall be made through: Donald
Meltzer or Larry Hamdan of CS First Boston Corporation, financial
advisor to the Company. Neither Recipient nor its Representatives will
contact any employee, customer or supplier of the Company (unless such
customer or supplier is also a stockholder or creditor of the Company)
in connection with a Transaction without the prior written consent of
the Company.
(7) (a) No failure or delay by the Company or its Representatives in
exercising any right, power or privilege under this Agreement
shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise of any
right, power or privilege hereunder. The invalidity or
unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of the remaining provisions
of this Agreement.
(b) This agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to
principles or conflicts of laws. Recipient, on behalf of itself
and its Representatives, hereby irrevocably and unconditionally,
(i) submits to the jurisdiction of the State or Federal courts
sitting in New York for purposes of all suits, actions or
proceedings arising out of or relating to this Agreement (and
agrees not to commence any suit, action or proceeding relating
thereto except in such courts) and waives, to the fullest extent
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permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any suit,
action or proceeding brought in such a court has been brought in
an inconvenient forum and (ii) consents to service of process in
any such suit, action or proceeding by mail as provided for under
the U.S. Federal Rules of Civil Procedure and waives any
objection which it might otherwise have with respect thereto.
If you agree to the terms and conditions of this Agreement, please
indicate your acceptance by signing and returning to the undersigned the
duplicate copy of this Agreement. This Agreement may be executed in several
counterparts, all of which together shall constitute one and the same agreement.
Very truly yours,
AMERICAN MAIZE-PRODUCTS COMPANY
By: /s/ Patric J. McLaughlin
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Name: Patric J. McLaughlin
Title: President and Chief Executive Officer
Agreed to as of the date first written above:
ERIDANIA BEGHIN-SAY, S.A.
By: /s/ Luigi Brasca
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Name: Luigi Brasca
Title: Director Planning
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