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EXHIBIT (c)(10)
[DUPLEX LETTERHEAD]
VIA TELEFAX 513/290-7270
March 3, 1996
Mr. Daniel Dittman
The Reynolds and Reynolds Co.
3555 S. Kettering Blvd.
Moraine, Ohio 45439
RE: Confidentiality Agreement
Dear Dan:
In connection with our discussions regarding a proposed business transaction
involving Reynolds & Reynolds Co. ("Reynolds") and Duplex Products Inc. (the
"Company"), Reynolds has requested the opportunity to review documents,
records, and other information that the Company views as confidential or
proprietary (collectively, "Confidential Information"). While we understand
your desire to review and examine such Confidential Information, and have no
general objection to providing it under the circumstances, we believe it
appropriate that the Company obtain Reynolds' written agreement to maintain the
confidentiality of such Confidential Information before we make it available. I
am sure you can understand the Company tries to exert every possible effort to
minimize the risk that any of our plans, trade secrets, or other information
might be disclosed or utilized in any improper fashion.
Accordingly, the balance of this letter contains an agreement on the part of
Reynolds to preserve the confidentiality of information provided to it or any
of its agents or designees.
Out of respect for the Federal Trade Commission's watchful eye over exchanges
of information among competitors, we are reluctant to provide you, at this
time, with information relating to current prices, current customers, current
or future costs from which price can be derived or marketing plans. Reynolds
hereby agrees that it will not use any Confidential Information for purposes
including planning, marketing, product development or pricing. The Confidential
Information is being provided to Reynolds to enable it to consider the
desirability, feasibility and timing of a potential business transaction with
the Company. However, such Confidential Information would
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not be provided if Reynolds did not sign this Confidentiality Agreement, and it
is being provided in reliance upon this Confidentiality Agreement.
This Agreement relates to all Confidential Information provided by the Company
to Reynolds about the Company, its business and its share of the industry,
including, but not limited to, information regarding the Company's business;
plans; financial results and statements; markets; projected activities and
results of operations; customers, materials requirements and sources; contracts;
backlog; means; methods, and processes of manufacture and assembly; trade
secrets; customer lists and customer names and contacts; and stock ownership and
other financial information. Confidential Information shall also specifically
include any information relating to the fact that the Company and Reynolds have
entered into discussions about a possible business transaction.
Reynolds agrees that Confidential Information will be disclosed only to such of
its personnel, and to such of its outside experts and advisors, as (1)
reasonably need to know such information to advise Reynolds in connection with,
or to determine the value or desirability of entering into, a transaction of the
type under discussion with the Company, and (2) agree to be bound by the
provisions and restrictions regarding Confidential Information contained herein.
Reynolds will be, and will remain, fully responsible to the Company for any use
of Confidential Information by any person who receives it on Reynolds' behalf,
or to whom Reynolds or any such person discloses it, for any reason, in all
respects as though Reynolds had made such use of such information. Unless later
agreed to in writing to the contrary, Reynolds will disclose Confidential
Information only to its Executive officers, directors and acquisition and
finance staff. Reynolds' marketing and sales personnel shall be excluded from
access to any Confidential Information.
Furthermore, Reynolds agrees that all Confidential Information will be kept and
maintained confidential by Reynolds, will not be disclosed to any third person
(except as described in the preceding paragraph); will under no circumstances
(and without in any manner limiting the preceding clause) be disclosed to, or
utilized in connection with, any supplier, customer or competitor (present or
potential) of the Company (including any such person now or hereafter
controlled by Reynolds) and will not in any way be used, or be permitted to be
used, in a manner detrimental to the business or prospects of the Company. If
and when discussions related to the proposed business relationship between
Reynolds and the Company should be terminated, the foregoing restrictions shall
nonetheless continue and remain in effect, and Reynolds shall return to the
Company all copies of Confidential Information then held by Reynolds, its agents
and advisors, or shall certify to the Company's satisfaction that all such
copies have been destroyed, and neither Reynolds nor any of its agents or
advisors will retain any of the Confidential Information in their possession or
control.
Without limiting the foregoing, Reynolds further agrees that none of the
Confidential Information or any other information provided by the company to
Reynolds will be used by Reynolds, or disclosed to others for use, in connection
with purchasing, selling or trading in the Company's securities in any manner
that is in violation of legal or regulatory restrictions applicable from time to
time, and Reynolds acknowledges a duty not to purchase, sell or trade in
securities on the basis of any material
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"inside" information that is not publicly known, and shall so instruct any
employees, agents or advisors utilized.
The foregoing limitations will not apply to any information disclosed by the
Company to Reynolds that would otherwise be within the definition of
Confidential Information (1) if such information is generally and readily
available to the public, or can be demonstrated to have been independently
known by Reynolds at the time of its disclosure to Reynolds, or (2) after the
time, if any, that such information becomes generally and readily available to
the public, or can be demonstrated to have been independently disclosed to
Reynolds, without any utilization of Confidential Information disclosed to
Reynolds hereunder, and without any breach by Reynolds (or by any of Reynolds'
personnel or advisors) of the obligations binding on Reynolds and reflected
herein; or (3) after the expiration of three (3) years from the date hereof.
The furnishing of Confidential Information hereunder shall not obligate either
party to enter into any further agreement or negotiation with the other or to
refrain from entering into an agreement or negotiation with any other party.
Assuming that you agree to the foregoing, please sign below and on the enclosed
copy of this letter and return one copy to me promptly, whereupon it shall
become a binding agreement between Reynolds and the Company.
Except as may be required by law, without the prior written consent of the
other party, neither party hereto nor their respective representatives will
disclose to any person either the fact that discussions or negotiations are
taking place concerning a possible transaction between the Company and Reynolds
or any other terms, conditions or other facts with respect to any such possible
transaction, including the status thereof.
The Company does not make any representation or warranty with respect to the
accuracy or completeness of any Confidential Information, or any other
information provided to Reynolds, including specifically any financial
projections or other forward looking information, except such representations or
warranties as may be set forth in an acquisition executed by the Company and
Reynolds.
In the event Reynolds discloses, disseminates or releases any Confidential
Information, except as provided above, such disclosure, dissemination or
release will be deemed a material breach of this Agreement and the Company may
demand prompt return of all Confidential Information previously provided. The
parties acknowledge that any breach of the provisions of this Agreement would
cause the Company to suffer irreparable damage that could not be adequately
remedied at law. Therefore, the Company shall have the right to seek specific
performance or other injunctive relief to enjoin any breach, in addition to its
other rights and remedies available at law. Our agreement shall be construed
and enforced in accordance with the laws of Illinois.
If you should have any questions or concerns, please do not hesitate to call.
Any requests for clarification or for additional information should be directed
to the Company's Chief Financial
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Officer, James Ramig, or to me. My fax number is 815/895-1091.
Yours sincerely,
DUPLEX PRODUCTS INC.
/s/ Mark A. Robinson
- ----------------------------
By: Mark A. Robinson,
Secretary/General Counsel
AGREED AND CONFIRMED:
REYNOLDS & REYNOLDS CO.
BY:__________________________________________
ITS:_________________________________________
Date:______________, 1996
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[REYNOLDS & REYNOLDS LETTERHEAD]
VIA TELECOPY - (815) 895-1091
March 7, 1996
Mark A. Robinson, Esq.
Secretary and General Counsel
Duplex Products, Inc.
1947 Bethany Road
Sycamore, IL 60178
Re: Confidentiality Agreement
Dear Mark:
Thank you for your March 3, 1996 letter. The terms of that letter are
satisfactory to Reynolds subject to the following modifications:
1. Given that we are only at an initial exploratory phase, we understand your
reasons for not providing at this time information relating to current prices,
current customers, current or future costs from which price can be derived or
marketing plans. As we have discussed, if the transaction proceeds to the due
diligence phase, that investigation will be based upon a mutually satisfactory
schedule and methodology. During that phase, we will need to obtain the
pricing, customer, cost and marketing information at a time which is
satisfactory to you and which will provide us a reasonable time to digest and
evaluate that information.
2. Similarly, we understand your reason for wanting to exclude our sales and
marketing personnel from access to the Confidential Information at this time,
but, if we proceed to the due diligence phase as described, we will need to
share appropriate Confidential Information with certain of our sales and
marketing personnel who are part of our acquisition team. We propose a solution
similar to that for the cost and pricing information (i.e., we will not provide
any Confidential Information to sales and marketing personnel who are part of
our due diligence team until you have consented to that disclosure; provided,
that you will give your consent at a time which will provide such sales and
marketing personnel a reasonable time to digest and evaluate the applicable
Confidential Information).
3. We expect in the course of the discussions regarding the proposed
transaction that Reynolds will deliver documents, records and other information
that Reynolds views as confidential or proprietary. Accordingly, the agreement
should be deemed to be
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Mark A. Robinson, Esq.
Page 2
March 7, 1996
mutual in all respects, including reciprocal provisions in all respects with
regard to any such confidential or proprietary information and mirror-image
rights and obligations of Duplex to all rights and obligations of Reynolds
(including, without limitation, the prohibition on certain activities in
Reynolds' stock).
4. Information which is disclosed orally would only be deemed "Confidential
Information" if that information is later embodied in a tangible means of
expression which is delivered to the receiving party.
5. There should be an exception for compelled disclosure as follows:
"Notwithstanding anything to the contrary in this letter, in the event that
the party receiving any Confidential Information is requested or becomes
compelled (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to
disclose any of the Confidential Information or take any other action
prohibited by this letter, the receiving party will provide the disclosing
party with prompt written notice so that the latter may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions
of this letter. In the event that such a protective order or other remedy is
not obtained or that the disclosing party waives compliance with the
provisions of this letter, the receiving party will furnish only that portion
of the Confidential Information or take only such action which is legally
required and will in good faith seek to obtain reasonable assurance that
confidential treatment will be accorded to the Confidential Information so
furnished."
6. Finally, we had a few technical corrections:
a. Reynolds' correct legal name is "The Reynolds and Reynolds Company."
b. The second and third sentences of the third paragraph on page one should
be reversed, and the words "any other" inserted after the word "for" and
before the word "purposes" in the former second sentence.
If the foregoing changes are acceptable, please execute this letter where
indicated below and return a copy to me by fax at (513 290-7270. Upon receipt
of that fax, the March 3 letter, as amended in
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Mark A. Robinson, Esq.
Page 3
March 7, 1996
the manner set forth in this letter, will thereby become a binding agreement of
Reynolds and Duplex. On the assumption that the changes will be acceptable, I
am also returning a copy of the March 3 letter executed on behalf of Reynolds.
Please call me (513-290-7270) if you have any questions. We look forward to
working with you.
Very truly yours,
THE REYNOLDS AND REYNOLDS COMPANY
By: /s/ Daniel W. Dittman
--------------------------------------
Daniel W. Dittman
Senior Vice President
Enclosure
AGREED AND ACCEPTED THIS 13TH DAY OF MARCH, 1996:
DUPLEX PRODUCTS, INC.
BY: /s/ Mark A. Robinson
----------------------------------
TITLE: Vice President/Secretary
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Officer, James Ramig, or to me. My fax number is 815/895-1091.
Yours sincerely,
DUPLEX PRODUCTS INC.
/s/ Mark A. Robinson
By: Mark A. Robinson
Secretary/General Counsel
AGREED AND CONFIRMED:
REYNOLDS & REYNOLDS CO.
BY: /s/ Daniel W. Dittman, see attached letter
dated 3/7/96.
ITS: Sr. Vice President
---------------------
Date: 3/7, 1996
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April 16, 1996
[DUPLEX LOGO]
The Reynolds and Reynolds Company
115 S. Ludlow Street
Dayton, Ohio 45402
ATTN: Daniel W. Dittman
Re: Confidentiality Agreement dated as of March 3, 1996, as amended by letter
dated as of March 7, 1996 (the "Agreement").
Dear Dan:
This letter will confirm our discussions regarding an amendment to the
Agreement.
Duplex Products Inc. hereby consents, pursuant to Section 2 of the March 7
letter, to the sharing of Confidential Information with your sales and
marketing personnel. Except as amended in the preceding sentence, the Agreement
will not be amended or modified and shall remain in full force and effect.
Sincerly,
DUPLEX PRODUCTS INC.
/s/ Mark A. Robinson
By: Mark A. Robinson
Its: Vice President/General Counsel and Secretary
Agreed and accepted as of the 16th day of April, 1996
THE REYNOLDS AND REYNOLDS COMPANY
By: __________________________
Its: _________________________
DUPLEX PRODUCTS INC.
P.O. BOX 1947
1947 BETHANY ROAD
SYCAMORE, ILLINOIS 60178