Exhibit (c)(5)
Confidentiality Letter Agreement dated July 20, 1998, between Roanoke Electric
Steel Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
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July 20, 1998
PRIVATE AND CONFIDENTIAL
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President & CEO
Roanoke Electric Steel Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇:
In order to allow Roanoke Electric Steel Corporation ("Roanoke") to evaluate a
possible transaction with Steel of West Virginia, Inc. (the "Company"), the
Company or its Representatives (as defined below) will deliver to Roanoke, upon
Roanoke's execution and delivery to us of this letter of agreement, certain
information (the "Confidential Information") about the properties and operations
of the Company that is either non-public, confidential or proprietary. Roanoke
agrees to treat as confidential and, except as required by applicable law, legal
process or stock exchange rule, to reveal to no one, except to its respective
directors, officers, employees, financing sources, agents or advisors (including
without limitation attorneys, accountants, consultants, brokers and financial
advisors) (collectively, "Representatives") to the extent permitted below, (i)
the fact that Roanoke is having discussions in this regard and (ii) any
Confidential Information that the Company or its Representatives may furnish
Roanoke about the Company.
The term "Confidential Information" means all the information about the Company,
whether written or oral, that is provided to Roanoke (including any information
provided before the execution of this agreement), and all reports, analyses,
compilations, data, studies, or other documents prepared by Roanoke or its
Representatives containing or based, in whole or in part, on any such furnished
information or, to the extent that it contains Confidential Information,
reflecting Roanoke's review of, or interest in, the Company. The term
"Confidential Information" does not include information which (i) is or becomes
general public knowledge other than as a result of a disclosure by Roanoke or
its Representatives in breach of this Agreement, (ii) was within Roanoke's
possession prior to its being furnished to Roanoke by the Company, provided that
the source of such information was not bound by an obligation of confidentiality
to the Company, or (iii) becomes available to Roanoke on a non-confidential
basis from a source other than the Company or any of its Representatives,
provided that, such other source is not bound by an obligation of
confidentiality to the Company.
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Roanoke Electric Steel Company
July 20,1998
Page 2 of 4
Roanoke will hold the Confidential Information in confidence, will use the
Confidential Information only to assist Roanoke in its evaluation of an
investment in the Company or any proposed transaction with respect thereto,
shall not otherwise use the Confidential Information for its own or anyone
else's benefit, and will not disclose any of the Confidential Information except
(i) to Roanoke's directors, officers, employees and Representatives (including
outside attorneys, accountants and consultants) who need such information for
the purpose of such evaluation (and Roanoke shall inform such persons of the
confidential nature of the material, and shall take reasonable measures to
enforce confidentiality and prevent unauthorized use or disclosure of
Confidential Information), or (ii) as may be required by law, legal process or
stock exchange rule. If any person, listed in clause (i) discloses Confidential
Information in breach of this Agreement, Roanoke shall be strictly liable for
such disclosure (regardless of any measures taken by Roanoke to prevent
disclosure). In the event of proposed disclosure under clause (ii), Roanoke will
provide the Company with prior notice so that the Company may seek a protective
order or other appropriate remedy, and Roanoke will not oppose action by the
Company to obtain such order or remedy.
Upon termination of Roanoke's evaluation of the proposed investment, or at any
earlier time, Roanoke shall return to the Company all documents furnished to
Roanoke by or on behalf of the Company containing Confidential Information. Any
notes and other documents prepared by Roanoke containing or based upon
Confidential Information will be held subject to the terms of this agreement or
destroyed.
Roanoke understands that the Company will endeavor to include in the
Confidential Information materials that may be relevent to Roanoke's evaluation,
but Roanoke acknowledges that the Company and its Representatives make no
representation or warranty (express or implied) as to the accuracy or
completeness of the Confidential Information. Roanoke agrees that the Company
and its Representatives shall have no liability to Roanoke or to any of its
Representatives, it being understood that only those particular representations
and warranties that may be made in a definitive agreement, when, as and if it is
executed, and subject to such limitations and restrictions as may be specified
in such definitive agreement, including restrictions on survival, shall have any
legal effect.
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Roanoke Electric Steel Company
July 20, 1998
Page 3 of 4
Roanoke further agrees that for a period of two years from the date hereof,
neither Roanoke nor any of its Representatives will knowingly solicit as
employees or consultants any of the current officers or employees of the
Company, without obtaining the prior written consent of the Company. The
foregoing, however, shall not prohibit general solicitations for employees
including through newspapers or similar advertisements or through search firms,
provided that such solicitations are not directed at the Company's employees.
Roanoke also agrees that neither Roanoke nor any of its Representatives will
contact any employees of the Company in connection with Roanoke's evaluation of
the Company without prior approval.
Roanoke agrees that the intention of the parties is to prevent absolutely the
disclosure or use by Roanoke or its Representatives (except for purposes of
evaluating a proposed investment in the Company) of any Confidential Information
obtained by Roanoke from the Company or its Representatives. The Company and
Roanoke agree that for all purposes this agreement will be construed to
accomplish that result.
This Confidentiality Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their respective successors and assigns, and
shall be strictly adhered to by all of Roanoke's Representatives. By making any
Confidential Information available to any such person, Roanoke agrees that it
will be held strictly and fully responsible for any damages suffered by the
Company as a result of disclosure by such person, regardless of Roanoke's fault.
Roanoke agrees that disclosure of any Confidential Information could irreparably
injure the Company's business and its relationship with its employees, its
customers and others, and the Company shall be entitled to equitable relief in
the event of any breach or threatened breach of this agreement. Such remedies
shall not be exclusive. Any breach or threatened breach of this agreement by
Roanoke shall entitle the Company to apply to any court of competent
jurisdiction to enjoin the violation, threatened or actual, of this agreement,
without the necessity of posting surety or injunction bond and regardless of
the existence or absence of any legal remedies or the sufficiency thereof.
Roanoke, and its successors and assigns, hereby waive any right to assert any
contention that the remedy at law for any breach or threatened breach of this
agreement is sufficient and consent to non-exclusive personal jurisdiction and
venue in the state and federal courts with jurisdiction in West Virginia.
Roanoke shall indemnify and hold harmless the Company and its Representatives
from any and all claims, injuries, losses, damages or expenses (including
attorneys' fees and costs) arising out of a breach by Roanoke or its
Representatives of any provision of this agreement.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
INVESTMENT BANKING
Established 1832
Roanoke Electric Steel Company
July 20, 1998
Page 4 of 4
This agreement sets forth the entire understanding and agreement of the parties
and related persons with regard to the subject matter hereof and supersedes all
prior and contemporancous agreements, arrangements and understandings related
thereto. In the event of any inconsistency between this agreement and any
statement contained in or transmitted with the Confidential Information this
agreement shall control. This agreement may be amended, superseded or canceled
only by a written instrument which specifically states that it amends,
supersedes or cancels this agreement, executed and delivered by an authorized
officer of each entity to be bound thereby.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
Authorized Agent of the Company, on behalf of the Company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
Co-Director-Investment Banking
Accepted and Agreed as of the date first written above:
Roanoke Electric Steel Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and CEO