OneSource Information Services, Inc.
300 Baker Avenue
Concord, MA 01742
October 22, 2003
infoUSA Inc.
5711 South 86th Circle
Omaha, NE 68127
CONFIDENTIALITY AGREEMENT
Dear Mr. Gupta:
In connection with your possible interest in a possible negotiated strategic
transaction (the "Transaction") involving ONESOURCE INFORMATION SERVICES, INC.
(together with its subsidiaries, the "Company"), you have requested that we or
our representatives furnish you or your representatives with certain information
relating to the Company or the Transaction. All such information (whether
written or oral) furnished (whether before or after the date hereof) by us or
our directors, officers, employees, affiliates, representatives (including,
without limitation, financial advisors, consultants, attorneys and accountants)
or agents (collectively, "our Representatives") to you or your directors,
officers, employees, affiliates, representatives (including, without limitation,
financial advisors, consultants, attorneys and accountants) or agents or your
potential sources of financing for the Transaction (collectively, "your
Representatives") and all analyses, compilations, forecasts, studies or other
documents prepared by you or your Representatives in connection with your or
their review of, or your interest in, the Transaction which contain or reflect
any such information is hereinafter referred to as the "Information". The term
Information will not, however, include information which (i) is or becomes
publicly available other than as a result of a disclosure by you or your
Representatives, (ii) is or becomes available to you on a nonconfidential basis
from a source (other than us or our Representatives) which, to the best of your
knowledge after due inquiry, is not prohibited from disclosing such information
to you by a legal, contractual or fiduciary obligation to us, or (iii) is
related to the tax treatment or tax structure of any Transaction.
Accordingly, you hereby agree that:
You and your Representatives (i) will keep the Information confidential and will
not (except as required by applicable law, regulation or legal process, and only
after compliance with paragraph 3 below), without our prior written consent,
disclose any Information in any manner whatsoever, and (ii) will not use any
Information other than in connection with the Transaction; provided, however,
that you may reveal the Information to your Representatives (a) who need to know
the Information for the purpose of evaluating the Transaction, (b) who are
informed by you of the confidential nature of the Information and (c) who agree
to act in accordance with the terms of
this letter agreement. You will cause your Representatives to observe the terms
of this letter agreement, and you will be responsible for any breach of this
letter agreement by any of your Representatives.
You and your Representatives will not (except as required by applicable law,
regulation or legal process, and only after compliance with paragraph 3 below),
without our prior written consent, disclose to any person the fact that the
Information exists or has been made available, that you are considering the
Transaction or any other transaction involving the Company, or that discussions
or negotiations are taking or have taken place concerning the Transaction or
involving the Company or any term, condition or other fact relating to the
Transaction or such discussions or negotiations, including, without limitation,
the status thereof.
In the event that you or any of your Representatives are requested pursuant to,
or required by, applicable law, regulation or legal process to disclose any of
the Information, you will notify us promptly so that we may seek a protective
order or other appropriate remedy or, in our sole discretion, waive compliance
with the terms of this letter agreement. In the event that no such protective
order or other remedy is obtained, or that the Company does not waive compliance
with the terms of this letter agreement, you will furnish only that portion of
the Information which you are advised by counsel is legally required and will
exercise all reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Information.
If you determine not to proceed with the Transaction, you will promptly inform
our Representatives, Morgan Stanley & Co. Incorporated ("Morgan Stanley") and
Portico Capital Securities LLC ("Portico"), of that decision and, in that case,
and at any time upon the request of the Company or any of our Representatives,
you will either (i) promptly destroy all copies of the written Information in
your or your Representatives' possession and confirm such destruction to us in
writing, or (ii) promptly deliver to the Company at your own expense all copies
of the written Information in your or your Representatives' possession. Any oral
Information will continue to be subject to the terms of this letter agreement.
You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor
Portico, nor our other Representatives, nor any of our or their respective
officers, directors, employees, agents or controlling persons within the meaning
of Section 20 of the Securities Exchange Act of 1934, as amended, makes any
express or implied representation or warranty as to the accuracy or completeness
of the Information, and you agree that no such person will have any liability
relating to the Information or for any errors therein or omissions therefrom.
You further agree that you are not entitled to rely on the accuracy or
completeness of the Information and that you will be entitled to rely solely on
such representations and warranties as may be included in any definitive
agreement with respect to the Transaction, subject to such limitations and
restrictions as may be contained therein.
Since the Company is a publicly-traded corporation, the use or disclosure of any
information which is material and non-public ("Inside Information"), or trading
in the securities of the Company on the basis of such Inside Information, may
result in civil and criminal penalties and enforcement proceedings commenced
against you, your Representatives or the Company in the event you or your
Representatives engage in transactions involving the capital stock of the
Company. Because of receipt of the Confidential Information provided by the
Company or its
Representatives, you may be deemed to have Inside Information regarding the
Company. Therefore, you and your Representatives are strictly prohibited from
trading in the securities of the Company unless such Inside Information has been
disclosed to the public and you or your Representatives have refrained from
trading for a period of time sufficient for that information to be publicly
disseminated.
You agree that, for a period of one year from the date of this letter agreement,
neither you nor any of your affiliates will, without the prior written consent
of the Company or the Special Committee of its Board of Directors (or, if no
Special Committee exists, the Board of Directors): (i) acquire, offer to
acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,
any voting securities or direct or indirect rights to acquire any voting
securities of the Company or any subsidiary thereof, or of any successor to or
person in control of the Company, or any assets of the Company or any subsidiary
or division thereof or of any such successor or controlling person; (ii) make,
or in any way participate in, directly or indirectly, any "solicitation" of
"proxies" (as such terms are used in the rules of the Securities Exchange
Commission) to vote, or seek to advise or influence any person or entity with
respect to the voting of, any voting securities of the Company; (iii) make any
public announcement with respect to, or submit a proposal for, or offer of (with
or without conditions) any extraordinary transaction involving the Company or
its securities or assets; (iv) form, join or in any way participate in a "group"
(as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as
amended) in connection with any of the foregoing; or (v) request the Company or
any of our Representatives, directly or indirectly, to amend or waive any
provision of this paragraph. You will promptly advise the Company of any inquiry
or proposal made to you with respect to any of the foregoing.
You agree that, for a period of one year from the date of this letter agreement,
you will not, directly or indirectly, solicit for employment or hire any
employee of the Company or any of its subsidiaries with whom you have had
contact or who became known to you in connection with your consideration of the
Transaction; provided, however, that the foregoing provision will not prevent
you from employing any such person who contacts you in response to a general
published help wanted ad or on his or her own initiative without any direct or
indirect solicitation by or encouragement from you.
You agree that all (i) communications regarding the Transaction, (ii) requests
for additional information, facility tours or management meetings, and (iii)
discussions or questions regarding procedures with respect to the Transaction,
will be first submitted or directed to Morgan Stanley or Portico and not to the
Company. You acknowledge and agree that (a) we and our Representatives are free
to conduct the process leading up to a possible Transaction as we and our
Representatives, in our sole discretion, determine (including, without
limitation, by negotiating with any prospective buyer and entering into a
preliminary or definitive agreement without prior notice to you or any other
person), (b) we reserve the right, in our sole discretion, to change the
procedures relating to our consideration of the Transaction at any time without
prior notice to you or any other person, to reject any and all proposals made by
you or any of your Representatives with regard to the Transaction, and to
terminate discussions and negotiations with you at any time and for any reason,
and (c) unless and until a written definitive agreement concerning the
Transaction has been executed, neither we nor any of our Representatives will
have any liability to you with respect to the Transaction, whether by virtue
of this letter agreement, any other written or oral expression with respect to
the Transaction or otherwise.
You acknowledge that remedies at law may be inadequate to protect us against any
actual or threatened breach of this letter agreement by you or by your
Representatives, and, without prejudice to any other rights and remedies
otherwise available to us, you agree to the granting of injunctive relief in our
favor without proof of actual damages. In the event of litigation relating to
this letter agreement, if a court of competent jurisdiction determines in a
final, nonappealable order that this letter agreement has been breached by you
or by your Representatives, then you will reimburse the Company for its costs
and expenses (including, without limitation, legal fees and expenses) incurred
in connection with all such litigation.
You agree that no failure or delay by us in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any right, power or privilege hereunder.
This letter agreement will be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts applicable to contracts between
residents of that State and executed in and to be performed in that State.
This letter agreement contains the entire agreement between you and us
concerning the confidentiality of the Information, and no modifications of this
letter agreement or waiver of the terms and conditions hereof will be binding
upon you or us, unless approved in writing by each of you and us.
Please confirm your agreement with the foregoing by signing and returning to the
undersigned the duplicate copy of this letter enclosed herewith.
Very truly yours,
ONESOURCE INFORMATION SERVICES, INC.
By: /s/ Martin F. Kahn
Name: Martin F. Kahn
Title: Chairman
Accepted and Agreed as of the
date first written above:
INFOUSA INC.
By: /s/ Vin Gupta
Name: Vin Gupta
Title: Chief Executive Officer